Surely there is blame on both sides regarding the politicization of the federal courts, but the damage to the Supreme Court itself is largely the work of the Republican Party, specifically of Sen. Mitch McConnell (R-Ky.). Republicans brag about their power play in denying Judge Merrick Garland a vote, and then doing away with the 60-vote cloture requirement. They are downright delighted with McConnell for having pulled this off (almost).
We went from a system at the Supreme Court level where some consensus was needed to confirm a lifetime appointment to one in which sheer political might determines the court’s composition. Since neither party is likely to get 60 votes anytime soon, the 60-vote threshold at least provided some role for the minority party and therefore imposed some discipline on the majority party. The latter was obliged to make available the nominee’s full record and hold meaningful hearings. The argument as to whether someone was in or out of the “mainstream” had meaning when one party couldn’t just jam through its nominee.
Now we can see the results of a process that went from one that required some comity to one that requires none. For starters, the president picked off a list assembled by a nontransparent group. The Senate never required documents or people involved in that process to step forward or reveal their criteria — and how could they? Republicans run the show; Democrats are powerless. Then Republicans decided they could release only a portion of Kavanaugh’s voluminous records and, worse, delegate the task of deciding what should be released to a Republican ally. When it became apparent that at least some of the documents had nothing to do with national security and therefore should have been released long ago, the Senate Judiciary Committee Republicans plunged forward. And again, who is going to stop them?
The artificial deadline that makes it mandatory to get a final vote before the midterms is the most blatant form of power politics, made possible because Republicans need only 51 votes to confirm Kavanaugh. Lacking Republicans willing to say, “Hey we should follow the Merrick Garland precedent,” we now hear that we cannot really take all the time needed to investigate Ford’s allegation. That’s poppycock; the new Senate won’t be seated until next January.
At each step — be it the rushed hearing, the limited document disclosure, the treatment of Ford — the outcome has been preordained because: 1.) Republicans can do anything they please and 2.) No Republicans were willing to insist on a modicum of fairness.
Perhaps Ford’s emergence will shock Republicans out of their stupor. To their credit, Sens. Jeff Flake (R-Ariz.) and Bob Corker (R-Tenn.) insisted she be heard. They were followed by other Republicans. Hey, just a few responsible Republicans can make a difference! Flake went so far Monday to say that if you believe Ford, you must vote against confirmation.
Moreover, perhaps Republicans will start to exert some leverage beyond the Ford situation. Now that they’ve gotten a sense that they can influence the process — not to block or needlessly delay but to ensure that no errors are made, a full accounting of his record can be had and the court’s integrity can be protected (e.g., by recusal from Russia-related matters). It is not too late to get out Kavanaugh’s entire record; it’s certainly not too late for at least two senators to make clear they won’t vote to confirm without a recusal on Russia-related matters.
In sum, McConnell wrecked the old system; now a few sensible Republicans can help repair it. They won’t do it, however, by simply being go-alongers.