Judge Brett M. Kavanaugh’s frantic op-ed in the Wall Street Journal insisting that he is a fair, impartial judge — and that we should disregard his partisan, unhinged diatribe and nonjudicial demeanor during last week’s Senate testimony — serves as some recognition that the partisan wars in which he has taken up arms now threaten the legitimacy of the Supreme Court. Other than denying a seat to an overt partisan such as Kavanaugh, what can be done to recapture at least the illusion that the high court is something more than another blue-vs.-red battlefield?
It helps to understand how we got here, how we got to the point at which a Supreme Court nominee doesn’t bother to conceal his animosity toward an entire political party.
The federal judiciary and the selection process for it were not intended as expressions of representative democracy. We didn’t even directly elect senators who in turn confirmed judges until the 17th Amendment. It wasn’t intended to be an expression of popular will. The expansion of judicial power in the 20th century was a mixed blessing to be sure, serving as both a last line of defense for individual rights against a growing administrative state and an imperfect, sometimes counterproductive tool for ameliorating deep social conflicts. (As an aside, an unelected judiciary with vastly expanded power used to be the right’s nemesis; now it is a political prize and a midterm election base-pleaser.)
The high court certainly became a bone of contention for the right during the tenure of Chief Justice Earl Warren, but the nature of the justices and the institution itself changed when our parties become more overtly ideological, with fewer centrists. Still, matters were not dire for the court due to a very undemocratic instrument — the filibuster. That required some small degree of consensus for judicial confirmation and bestowed greater legitimacy on the courts. A justice acceptable to at least a small number of the opposition party’s members had to contain his or her partisanship; he or she couldn’t be a gladiator for one side or the other.
Sen. Mitch McConnell (R-Ky.) decided that he had enough of that. He envisioned the Supreme Court as simply another arena for bare-knuckle brawls. Custom and comity went out the door. He denied a mainstream liberal judge, Merrick Garland, so much as a hearing. He did away with the filibuster for the high court. Post Opinions contributing columnist Ron Klain, speaking to the New Yorker, put it brilliantly: “If [Republicans] can, they will.”
Republicans saw no need to release all of Kavanaugh’s records. What could Democrats do other than holler? They saw no need to take Christine Blasey Ford’s allegations seriously (they’d “plow right through,” McConnell said). So what if Democrats squawked? With impunity they could order an FBI inquiry designed to hopscotch around problems for Kavanaugh (e.g. his claims about drinking). Democrats didn’t have the votes to block him, and the GOP moderates could be counted on to crumble. Hence we got a Supreme Court nominee pleading his case on Fox News and the Wall Street Journal op-ed page.
In some respect, the fix for the Supreme Court is the same as the fix for our politics — leveling a right-wing populist party that abhors democratic norms and building a center-left to center-right coalition. (Some structural reforms such as ranked voting, eliminating gerrymandering and automatic voter registration would help.)
In the near-term, the goal would be to depoliticize the Supreme Court, reducing the vicious partisanship that accompanies a lifetime appointment. A term limit of 12 to 15 years for justices and a 60-vote threshold seem increasingly attractive. A constitutional amendment would be needed for the former and probably for the latter (unless both sides finally agree that losing the filibuster has been a disaster). That’s no easy task considering that an amendment must be proposed by either a two-thirds vote by both houses of Congress, or a call by two-thirds of the state legislatures for a constitutional convention (a prospect so alarming given the extremism and anti-democratic passions of the day that it should be avoided at all costs). However, given the right’s former antipathy toward a powerful executive and the left’s recent experience in a hyper-politicized nomination process, it might be doable.
The Supreme Court can do its part as well. It has resisted adopting its own ethics rules, including guidelines for recusal. That should end. Justices have become less reticent about making public, political remarks. That should end as well. Judges should eschew appearances before overtly ideological groups. If they act more like judges of old, they might recapture some of the luster the Supreme Court once had.
We’ve witnessed the destruction of a slew of executive branch norms and the collapse of Congress (which is now a partisan handmaiden to the president rather than a coequal branch of government). If we let the court go to seed, we will have pulled off a trifecta. But it’s not an accomplishment that any of us should seek.