The word going forward will be “legitimacy,” as the Least Dangerous Branch has only one real arrow in its quiver, that it possesses the trust of a nation. And as my former Fault Lines writer, Cristian Farias, contends, “Kavanaugh’s Confirmation Shreds the Pretense of an Apolitical Supreme Court.”
On the eve of Brett Kavanaugh’s confirmation to the Supreme Court, not long after Senator Susan Collins offered the apologia that clinched his elevation, Justice Elena Kagan was asked how she and her colleagues managed to find comity and stay above politics — even at a time when Washington was burning with partisan rage over the soon-to-be newest member of the institution she loves.
Kavanaugh and the ugly politics of his nomination remained nameless, but Kagan all but conceded that with him on the Court, and Justice Anthony Kennedy gone, things won’t ever be the same. “Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way people see the rest of the governing structures of this country now,” Kagan said at a Princeton University event celebrating, of all things, the contributions of women to that institution. “In other words, people thinking of the Court as not politically divided in the same way, as not an extension of politics but instead somehow above the fray.”
Putting aside the great many issues raised on both sides, from Kavanaugh’s judicial philosophy to how much he likes beer, from his being a Rehnquist fanboi to whether his bizarre “conspiratorial” attacks at his judicial confirmation hearing were those of maligned father or a man who would be justice, Brett Kavanaugh is nonetheless Associate Justice Kavanaugh. Hate him all you want, but we’ve got no other, no better, Supreme Court.
I understand Cristian’s angst, even if I’m disinclined to grasp for dear life to every dubious claim that furthers the cause. Even if Kavanaugh was the perfect model of probity, he wouldn’t be my flavor of justice. Then again, neither would anyone else Trump might appoint, so I’ve long since come to grips with the fact that the newest member of the Nine wasn’t going to win my heart.
But he’s there now, for better or worse. Yet, it seems that everybody knows better than me what he’s going to do with his newfound one-ninth power over a branch of government. The certainty with which he’s going to destroy all that’s good, because he’s nothing but a political hack appointed to do Darth Cheeto’s bidding, isn’t in doubt. Except to me. Maybe I’m just an eternal optimist, or maybe I’m just naive, but it won’t stop me from arguing my case to the Supreme Court with the intention of winning, even if there are five justices who might be hard to persuade.
The brute ascension of Kavanaugh to the Supreme Court, in one of the closest confirmation votes in all of American history, throws a wrecking ball at any remaining illusion, or shared conception, that the Supreme Court is the only apolitical, nonpartisan branch of the federal government. If everything Donald Trump touches dies, as Republican strategist Rick Wilson has written, his appointment of Kavanaugh is, in effect, the culmination of a campaign to capture and delegitimize every corner of our constitutional structure; the presidency, Congress, and now the Supreme Court all bear his imprimatur.
Kavanaugh was a lawyer when Trump was still doing a silly television show. Kavanaugh was a judge when Trump’s campaign for the presidency was still such an outlandish impossibility that it was hard to take it seriously. Kavanaugh wasn’t a Trump sycophant before. Will he be Trump’s “boy” now?
The brutally political nature of the confirmation hearings is undeniable, though it can’t be attributed to one side or the other. There has never been a more political confirmation, a dirtier hearing, a more unseemly and outrageous public display, than the show put on by the Senate Judiciary Committee. If you see a hero there, then it’s just your bias. No one made us proud. And it ultimately came down to pure political fiat, the worst of what partisanship can produce. It’s no surprise that Kavanaugh emerged tainted by these proceedings. He didn’t help himself, for sure, but then, there was no way he was going to come out of this without being covered in feces.
Some will persist in the debate about whether he lied, sexually assaulted Christine Blasey Ford, was a drunk in college or worse. To what end? Despite believers believing in what they believe, and refusing to let go of their absolute certainty in things they don’t know but believe, he’s still on the Supreme Court.
The question now is whether the Supreme Court, with Justice Kavanaugh and the “conservative” wing, can fulfill its constitutional function or has lost the trust of a nation. A number of law profs have emoted that the Court is dead, gone, lost to politics.
That Court is gone forever. We will spend at least the rest of my lifetime fighting over its rotting corpse. No prating about civility can change that fact. The fight is upon us now, and the party that shirks it will be destroyed.
It may be that the confirmation hearing will have a lasting impression on Justice Kavanaugh. It may be that he was too dedicated to a conservative vision of the law that it doesn’t matter. But this melodramatic hyperbole isn’t going to help. No, it’s not about civility, per se, but about the fact that this nation has no alternative to the Supreme Court, lest they put a dunking pool at One First to see if the witch floats. For the same reasons we have a Supreme Court in the first place, we still need one.
Even if we assume that Justice Kavanaugh isn’t wise enough, strong enough, possessed of sufficient personal integrity today to overcome the fury of the unduly passionate, there are eight other justices on the Court. One justice can’t do anything without the agreement of four others. And despite the strenuous, if infantile, efforts to taint the “conservative” wing of the Court for not being as progressive as Linda Greenhouse would prefer, that doesn’t change their legitimacy.
Yet, I refuse to give up on Justice Kavanaugh. I don’t know how he will vote, what arguments will push him to one side or another. You may think you do, but I lack the capacity to see into other people’s minds. My views may not prevail, just as they didn’t for most Supreme Court decisions over the past 50 years, but that doesn’t mean I won’t keep arguing for what I think is the right outcome.
You can spend your time hating Kavanaugh for being horrible. I prefer to spend my time fighting for good law. And as long as Justice Kavanaugh is on the Court, I will spend my time trying to persuade him to see the law my way rather than scream about how awful he is.