Until a few days ago, he seemed to be on a clear, if contentious, path to confirmation. Since Republicans changed the Senate rules last year to require only a simple majority to block a filibuster of a Supreme Court nominee — rather than a supermajority of 60 senators — Republicans seemed poised to get all 51 GOP senators to support Kavanaugh, perhaps even aided by a couple of Democrats up for reelection in red states. Alaska’s Lisa Murkowski and Maine’s Susan Collins, the two Republican pro-choice women, had not yet shown their cards — but their support seemed a strong possibility.
Today, that glide to confirmation is in doubt — or at least less certain than it was.
The tropical storm is this: Professor Christine Blasey Ford has accused Kavanaugh of sexually assaulting her at a high school party, years ago. As a result, Republican and Judiciary Committee member Sen. Jeff Flake has said, “If they push forward without any attempt with hearing what she’s had to say, I’m not comfortable voting yes” — which would make it impossible to advance the nomination out of the closely divided committee.
As this is being written, the Senate Judiciary Committee and Ford’s lawyers are negotiating over the terms under which she would appear. It’s not clear yet whether the hearing will go forward or whether the committee will rush ahead without her to a vote.
How did we get to this point — and what does it mean going forward for the Senate and for the court?
1. Rising ideological polarization within Congress tossed more decisions to the courts
The main culprit here is Congress’s increasingly bitter ideological polarization — which makes it difficult to agree on who sits on the nation’s highest court and not just in the most obvious ways.
Polarization has led Congress to deadlock repeatedly over the past couple of decades. With Congress often stymied, the courts become even more important arbiters and central policymakers. In the past, Congress would fix ambiguous language by enacting “technical corrections” to speed a law’s implementation. Today, polarization prevents compromise, so muddy language ends up at the Supreme Court — as it did in clarifying the meaning of the Affordable Care Act in 2015.
And when the courts step in, they sometimes call on Congress to fix the problem. That’s what happened in 2013’s Shelby County v. Holder, in which the Supreme Court invalidated part of the Voting Rights Act but called on Congress to fix the part of the law singled out as unconstitutional. Congress hasn’t been able to agree on whether or how to make the change.
With Congress paralyzed, the court becomes ever more important in arbitrating tough, polarizing issues. That makes the court more important to both Republicans and Democrats — and makes the Senate’s advice and consent still more hotly contested.
How much does it matter who gets seated on the court? Consider the 5-4 decision in Bush v. Gore, when Florida was recounting its votes to decide the 2000 election. Five conservative justices appointed by Republicans favored ending the recount and seating George W. Bush as president; four liberal-leaning justices opposed that decision. Those five justices arguably decided that election.
2. Rising partisanship has shaken the confirmation process
More than ideological disagreements divide the parties. Sheer partisanship also uproots the process: Your team is for the nominee, so my team is against her — regardless of the policies at stake.
In 2013, Senate Democrats revamped chamber rules to allow a majority to kill filibusters of lower court nominees. Democrats justified the highly partisan move as a response to blanket GOP opposition to high-profile Obama nominees. And in 2016, partisanship was on full display when Republicans refused even to hold hearings on Merrick Garland, President Barack Obama’s nominee to replace Antonin Scalia on the Supreme Court, leaving the seat empty for over a year. Partisanship was the culprit yet again in 2017, when Republicans nuked the filibuster for Supreme Court nominees in 2017 to get Neil M. Gorsuch seated on the court.
When senators’ loyalties are first and foremost to their party, advice and consent suffers.
These two factors — polarization and partisanship — delivered the promised contentiousness we’ve been seeing in the Kavanaugh hearings up to now.
3. Here come the midterm elections
All that has been complicated by the approaching midterm elections, when Democrats might, perhaps, take control of the Senate, given how Trump’s extremely low approval ratings are expected to boost voter turnout for Democrats and suppress it for Republicans. If that happens, Senate Democrats could stop Trump from putting more conservatives on the bench, both in the Supreme Court and the rest of the federal judiciary. That’s behind Mitch McConnell’s determination to confirm Kavanaugh before November.
4. The #MeToo movement has women already mobilized
This year, there’s a fourth factor that’s turned this tropical storm into a potential tsunami: the #MeToo moment. Women have already been mobilized, running in record numbers as candidates — and likely to turn out in record numbers as Democratic voters as well. Trump’s Friday morning broadsides against Ford promise to intensify the winds.
This is a huge test for the Republican Senate. Keep in mind that just five of the 21 female senators are Republicans. And it’s a challenge for Republicans more broadly, given that the movement arguably began in part because the president has been recorded boasting about sexual assault and publicly accused of it by 16 women.
Republicans initially seemed eager to hold a perfunctory hearing and push onward to a vote. But in the #MeToo era, with contested elections in less than two months, that’s a highly risky strategy.
While it may sound a bit dramatic, these contests matter for the legitimacy of the Supreme Court. The court’s power comes from broad, diffuse support for the institution. When people disagree ideologically with court decisions, their support for the court declines — making it seem more and more like just another political institution.
A polarized and partisan confirmation process — with unresolved sexual assault allegations facing a lifetime appointee — could undermine Kavanaugh’s legitimacy and that of the court on which he serves.
Correction: An earlier version of this incorrectly stated that the four justices who dissented in Bush v. Gore were appointed by Democrats.