The swing votes in the Senate on Judge Brett Kavanaugh’s confirmation – Lisa Murkowski, R-Alaska, Heidi Heitkamp, D-N.D., Jeff Flake, R-Ariz., Susan Collins, R-Maine, and Joe Manchin III, D-W.Va. – know they cannot satisfy the true believers. However they voted, they would be denounced by zealots on the other side. But, as far as I am concerned, they are the heroes of the hour – the only senators who take their duties of “advice and consent” as seriously as the Founders intended.
For everyone else, Kavanaugh’s confirmation is a mindless exercise in party loyalty. Almost all Democrats would have voted “nay,” even if Kavanaugh were a combination of Oliver Wendell Holmes and St. Francis of Assisi. And almost all Republicans would have voted “aye,” even if Kavanaugh were a combination of Roger Taney (he of Dred Scott notoriety) and Jack the Ripper. I exaggerate, but only slightly.
It is almost impossible to remember a time when Supreme Court nominees could expect confirmation by unanimous or near-unanimous acclaim. Antonin Scalia was approved by a 98-to-0 vote in 1986. Imagine that. In more recent years, the partisan divide has translated into bitter confirmation battles. The Senate did not even grant a hearing to President Barack Obama’s nominee to replace Scalia, Merrick Garland, and it approved Neil Gorsuch, who faced not a single allegation of sexual impropriety, with 45 no votes.
Predictably, partisans cannot agree when this trend started or who is to blame. Conservatives blame the divisive Roe v. Waderuling in 1973 and the rejection of nominee Robert Bork in 1987. Liberals will point to the arbitrary 2000 decision in Bush v. Gore, which handed the presidency to the Republican nominee. Suffice to say, there is plenty of blame to go around.
The result is to make the Supreme Court as divided along partisan (or, perhaps more accurately, tribal) lines as the country at large. Almost all of the 5-to-4 decisions of the last term featured a predictable constellation of “Republican” justices voting against “Democratic” justices. Given the intensive ideological screening of nominees now routine on both sides, it is almost impossible to imagine a Republican-appointed justice such as David Souter establishing a liberal voting record, or a Democratic-appointed justice like Byron R. White establishing a conservative record.
More’s the pity. Because, if the Supreme Court is seen as a legislative, not a judicial, body, then it will fall as far in public esteem as Congress has already done. President Donald Trump made a revealing slip in 2016 when he referred to judges signing “bills.” If they are merely legislators in black robes, then their decisions will not command the respect that the court needs to function.
Sadly, the confirmation of Kavanaugh is likely to accelerate the court’s slide into dysfunction and disrepute. If the judge is genuinely innocent – and it is true that the accusations made by Christine Blasey Ford are uncorroborated, if credible – then I can understand his anger at being falsely accused. But he went too far in raining partisan fire and fury on Democrats, trafficking in conspiracy theories by claiming his ordeal was payback for the impeachment of Bill Clinton and the inauguration of Donald Trump, and seemingly threatening revenge (“what goes around comes around”) on his tormentors.
Even Kavanaugh recognized that he erred. What other Supreme Court nominee has ever felt compelled to write an op-ed assuring the country, “I am an independent, impartial judge”? But like a president proclaiming “I am not a crook,” a judge proclaiming “I am not a partisan” sends another message altogether. All the more so given that this article appeared in the conservative opinion pages of the Wall Street Journal. This, after Kavanaugh had granted an interview to the even more right-wing Fox News, further casts his objectivity and judgment into doubt.
There are, moreover, questions about his honesty that remain troubling. How could he deny he ever “attended a gathering like the one Dr. Ford describes” when his own calendar makes clear he attended such gatherings? How could he claim that his yearbook inscription “Renate Alumnius” was a term of affection – not, as so obviously the case, a crude sexual boast? And how could he rule out the possibility that he suffered blackouts while under the influence when even his own college drinking buddies believe he is lying?
That said, it is not an easy decision. No women have appeared to accuse Kavanaugh of sexual misconduct since he left college – and even the allegations that concern his youth are hardly proven. Some, in fact, have been largely disproven. He has apparently led a blameless life as an adult, and he is eminently qualified. Like the retired Justice John Paul Stevens, I was prepared to support Kavanaugh were it not for his dismaying confirmation performance. But I can understand senators such as Flake and Collins reaching a different conclusion in good faith. What I can’t understand is how so many senators can outsource their thinking to their political parties.
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