The Washington PostDemocracy Dies in Darkness

Opinion If we want to protect the Supreme Court’s legitimacy, Kavanaugh should not be on it

As Supreme Court nominee Brett Kavanaugh faces a sexual misconduct allegation, columnist Ruth Marcus asks, who's responsible for the burden of proof? (Video: Gillian Brockell/The Washington Post)

The unprecedented Supreme Court confirmation process for Judge Brett M. Kavanaugh has surfaced three problems (at least).

The question of whether he sexually assaulted women in high school and college is the main event, and the FBI is now investigating, according to The Post, Deborah Ramirez’s claim that Kavanaugh exposed himself to her during a party at Yale University when he was allegedly drunk.

The second is genuine concern as to whether he was telling the truth and the whole truth under oath — with regard to his acquaintances, sexual innuendos in his yearbook and, most of all, his drinking. These are small matters, his defenders insist; but, whether big or small, his slippery responses have spawned a cottage industry in ferreting out them all. I have no doubt some enterprising attorney will document and then submit an account to the Bar, to the new Democratic majority (if they win a majority in at least one house and look ready to pursue impeachment) and even to the FBI.

However, here I want to focus on what may be the most significant issue — whether Kavanaugh’s “big reveal” that he is an angry partisan who thinks Democrats conspired to get him — now disqualifies him to sit on any court, let alone the Supreme Court.

Follow Jennifer Rubin's opinionsFollow

The “politicization” of the court, as many call it, didn’t start with Kavanaugh. However, before the parties were entirely polarized and the filibuster destroyed, there was some requirement to reach bipartisan consensus on nominees. The judiciary’s role in vital, hot-button issues has increased, making the Supreme Court seats precious, but the Senate acted as a brake, ensuring that qualified and temperamentally fit people were confirmed. Then the GOP became a right-wing, radical party that eschewed long-held principles such as truth, humility, decorum and respect. Republicans radicalized, and with no filibuster to sift out the political operatives from the judges, we get Kavanaugh’s nomination.

Not to put too fine a point on it, but should not Kavanaugh recuse himself from every case involving a left-leaning group that is part of the conspiracy he decried?

As he yelled at Democrats on the Senate Judiciary Committee, it was not hard to imagine that he would be less than evenhanded if they were a party in litigation. “With his unprecedented attacks on Democrats and liberals, Kavanaugh must now likely broadly recuse himself from matters including those groups,” says ethics guru Norman Eisen. “It may wipe out a substantial portion of his docket should he be confirmed. We have a rule of thumb in government ethics: When recusals are so broad that the nominee can’t do his job, then maybe he shouldn’t be confirmed to the position. It is time to consider that question here.”

With Kavanaugh the problem is dicier if he gets to the Supreme Court.

“As a Supreme Court justice, Kavanaugh would not be bound by the rules applicable to judges on the U.S. Court of Appeals with respect to recusal,” says Harvard law professor Laurence H. Tribe. For lower-court judges operating under those guidelines, Tribe argues “there is a very strong argument that Kavanaugh’s intemperate screed attacking liberal groups and spinning conspiracy theories when he testified on Thursday afternoon now requires him to recuse in any case where such groups appear before the Court of Appeals on which he sits.” Tribe continues, “For him to remain on a three-judge panel that sits in judgment on any legal claim affecting such a group would obviously create at least the appearance of a conflict of interest and probably an actual conflict.”

He explains, “It follows – not from rules that wouldn’t technically bind him but from the principles about which Norm Eisen, Judge [Timothy] Lewis and I wrote in our Brookings Report of September 4 about the substantive areas from which Kavanaugh would have to recuse under cases like Williams-Yulee (and from the importance of maintaining the Supreme Court’s credibility as a fair arbiter of core legal questions) – that Judge Kavanaugh could not credibly cast a vote or participate in any way as a Supreme Court Justice in any of the very substantial number of cases that court decides each year involving litigants, whether individuals or organizations, that Kavanaugh evidently blames for orchestrating what he sees as an outrageous attack on his integrity, his decency, and his very life as well as the life of his family.”

In other words, we would be expecting a fierce partisan to recuse himself (for excessive partisanship), so the high court wouldn’t appear to be simply a political machine. That’s a poor bet, and even if Kavanaugh recused himself from some cases, each and every Supreme Court decision would come with an asterisk. The Supreme Court’s legitimacy, already fraying, would be decimated. The more than half of the country that didn’t vote for Donald Trump understandably would think the court’s 5-to-4 decisions stemmed from political bias.

In 2006, when Kavanaugh was up for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, the American Bar Association became concerned that he was unduly rigid and impervious to persuasion. That prompted the ABA to reduce his rating from “well qualified” to “qualified.” (The Post reports, “A particular judge had told the ABA that Kavanaugh had been ‘sanctimonious’ during an oral argument in court. Several lawyers considered him inexperienced, and one said he ‘dissembled’ in the courtroom.”) He regained the “well qualified” rating for the Supreme Court, but I have no doubt that had Kavanaugh had a scene like the one we saw Thursday the ABA would have rated him “unqualified.” It should reexamine its rating based on new evidence.

A good number of Americans already believe the Supreme Court is nothing more than a mini-legislature with two warring factions, fighting for that fifth seat to deliver “wins” for its side. Putting a judge on the Supreme Court who expressed hatred and resentment toward a wide swath of the Democratic Party would shred whatever is left of the court’s intellectual integrity.

Before Christine Blasey Ford stepped forward, I speculated that Kavanaugh’s smaller misstatements and evasions in testifying (e.g., his role in Charles Pickering’s confirmation, his knowledge that reports from a GOP operative came from emails purloined from Democrats) might have been part of an effort to tone down his role as a partisan. He had been a dogged antagonist of the Clintons as a lawyer working for independent counsel Kenneth W. Starr, after all,  and any additional sign of hyperpartisanship could have been curtains for him in 2006.

It seems I was more right than I possibly could have anticipated. This is a man soaked in the Clinton wars, who delivered dozens of speeches thrilling conservative activists at the Federalist Society and now lets on that he harbors rabidly hostile views of the Democrats. It’s inconceivable someone so biased, someone who vowed revenge (“What goes around, comes around,” he shouted), could be elevated to the Supreme Court. And yet, he might.

Read more:

The downside of deny, deny, deny

Kavanaugh’s confirmation went seriously off track weeks ago