Republicans in the Senate are going to push through confirmation of Brett Kavanaugh, and it will look and feel as if they’ve scored a “win,” but little good can come of it for them.
The Supreme Court was specifically designed to be a non-partisan institution. That’s what the lifetime appointment was intended to accomplish. Justices wouldn’t have to answer to those in the political wings of government who put them on the court . Their only agenda would be to measure the law against the Constitution, and rule on cases based on whether the legislation in question adheres to the intent of our founding document.
Mostly that’s how judicial nominations have been handled, but lately there have been efforts to stack the Court with justices who are likely to vote in certain ways. Kavanaugh is such a justice, and that, combined with his “swing” vote status has made his nomination toxic.
This week’s drama began with the death of Justice Antonin Scalia in February of 2016 and GOP Senate leader Mitch McConnell’s play to deny even a hearing for President Obama’s choice, leaving the seat open for almost a year. This gave candidate Donald Trump the opening to promise he would appoint a new Supreme Court judge “guaranteed” to overturn the landmark Roe vs. Wade decision. This was catnip for the Republican evangelical base, and the Federalist Society drew up a list of solid anti-abortion judges, which Trump displayed at rallies, repeatedly pointing out that his Supreme Court appointments would definitely produce a majority that would ban legal abortions in the U.S.
Some have argued that it was this promise that energized the voters of the religious right and enabled Trump to eke out enough votes in certain precincts to win in the Electoral College. That could be true, and on its face that’s damaging enough, but the real damage in the long run will be to the Court itself. Either way, Republicans now face three choices, all of them bad:
- They can wait for the FBI to conclude its current supplemental background investigation and vote to confirm Kavanaugh no matter what the FBI discovers.
- They can vote not to confirm him, and get a new nominee from the White House.
- Or the White House can quietly drop support for Kavanaugh, letting him know it’s time to withdraw his name from consideration.
Choice number one will get them the hard core right wing majority they’ve been working for since before the Senate rejected Robert Bork in 1987. Such a court will grant their wish to make abortion illegal (and to remove government oversight of corporate activity, campaign funding, voting rights, religious discrimination, etc.). But it will also remove any doubt in the minds of women voters across the nation that the Republican Party is the party of misogynistic old white dudes. This will cost them dearly in the upcoming election, and in 2020 and perhaps beyond.
Choice number two gets them a new nominee, also “guaranteed” to overturn Roe, but costs them the avid support of evangelicals, who by now are the GOP’s most sure-thing voters and who will see such a vote as “caving” to the conniving godless baby-killing Democrats. In addition, starting over with a new nominee would take time, and the Republicans want this whole thing over before the November midterms, when they will lose the House and maybe even the Senate. It is already leaving a bad taste, and the further back in time they can push it, the better.
Choice number three leads to the same situation as number two: new nominee, Roe (et al) will be overturned, negative influence on midterms, and loss of support from the religious base.
This dilemma could have been avoided had Trump nominated a moderate Republican, which is what almost all previous nominations looked like for 200 years. Sure, presidents get to pick who they want, and most of them will choose judges who more or less agree with them politically. And as long as those choices are qualified judges, Senators of the other party typically hold their noses and confirm, on the theory that, well, she is qualified and we’ll get our chance later.
Trump’s two choices so far have been nakedly partisan. Neil Gorsuch was confirmed anyway without too much fuss, because he was a hard core right winger replacing a hard core right winger. In political terms, both parties understood that after his campaign promises, Trump didn’t have much choice. But a second partisan nominee will radically change the direction on the Court for at least a generation, and a lot of settled law hangs in the balance. This time the Democrats had to fight. Once the facts emerged that Kavanaugh appears to have been a blackout drunk with some sketchy sexual behavior in his distant past and perhaps a little perjury in his recent past, it would be political malpractice not to delve into them.
But it’s all due to efforts to make the Supreme Court just another political partisan government agency. The GOP has been following a scorched earth, win-at-any-cost, power-for-powers’-sake game plan since the 1970s, and the ascendance of Donald Trump has fully institutionalized it. The Party is now all about “owning the libtards.” No Republican senator saw or heard Brett Kavanaugh’s emotional and deeply political self-defense speech after Christine Blasey Ford’s testimony last week and thought Whoa, this guy might have an agenda other than the unbiased interpretation of the Constitution. Brett’s defense against Ford’s accusations is essentially “some other dude did it.” He didn’t address the real reason for that last hearing. Most of his speech was an attack on the Democratic Party. He even reached back in time to suggest that Bill and Hillary Clinton are conspiring to stop his rise to the bench.
If the Republicans confirm Kavanaugh, and I think they will, they will pay one or all of the prices I described above, and the human and civil rights of all Americans will be in peril for a long time to come. But the heaviest price will be paid in the loss of legitimacy of the Supreme Court, the last place in Washington not already corrupted.