After the angst of Justice Brett M. Kavanaugh’s confirmation proceedings, even Justice Elena Kagan is talking publicly about the damage to the Supreme Court’s credibility. I asked constitutional scholar Laurence H. Tribe and ethics guru Norman Eisen about the status of the high court and what could be done to shore up its standing with the American people.
One issue we did not address, because both lawyers appear before the court, is whether progressive groups and individual litigants should strategically seek Kavanaugh’s recusal given his expressed venom against the left. Lawyers will no doubt seriously discuss this option with their clients going forward. The risk of course is in provoking Kavanaugh’s ire (or that of his conservative colleagues) — which tells you something about suspicions regarding his temperament. However, if progressive litigants believe “the fix is in,” they must be sure to put that view on the record. A raft of 5-4 decisions falling predictably against progressive causes may one day be accorded the status of unpublished opinions (i.e., cannot be cited) given the issues of bias and conflict. The failure to recuse may also be important when deciding whether to expand or shrink the size of the court. Kavanaugh could preempt some or all of this by retracting his recent statements accusing the left of conspiring to get him and/or announcing he will recuse himself from certain categories of cases (e.g., those involving members of the Senate).
Below is the conversation with Tribe and Eisen, both Post contributors, edited lightly for length and ease of understanding.
We’ve gone through a hellish confirmation process. What, if any, is the risk to the Supreme Court now?
Eisen: While I am bitterly disappointed with the outcome of the nomination process on the merits, I think there are healthy aspects to tearing the mask off the fact that the court is a political actor, and that its newest nominee certainly is. The fight now moves to an ethics issue, one of constitutional dimensions: recusal. With Professor Tribe and GOP Judge Tim Lewis, I have written a lengthy analysis of Kavanaugh’s constitutional obligation to recuse under the Caperton line of cases. I will now be transferring my energies to fighting for appropriate recusals.
Tribe: The risk to the Supreme Court, as I suggested in a recent New York Times op-ed that Justice John Paul Stevens referenced before Judge Kavanaugh’s confirmation, is that the court will lose the trust of the American people — trust without which it can’t perform its vital functions as a balance wheel of democracy and a protector of vulnerable individual rights. That the justices necessarily bring their life experiences and ideological perspectives to bear on the cases before them is recognized by all but the most naive among us. But that doesn’t and shouldn’t mean that the justices should be, or should be seen as, partisan pols whose judicial robes are disguises for their political agendas, including score-settling motives for deciding cases against groups they have singled out for making their confirmations painful. Unless Justice Kavanaugh recuses himself from so wide a swath of cases that he will for all practical purposes be what Justice Stevens called a “part-time justice,” something he most assuredly will resist doing, his involvement in cases in which he is hopelessly compromised will threaten to erode the court’s capacity to command respect. Because, as Alexander Hamilton wrote in Federalist 78, the Supreme Court necessarily lacks the power of the purse and the power of the sword, it must rely for its efficacy on the power of reason. But reason distorted by vindictive or otherwise distracting motives cannot serve the persuasive purposes that only visibly uncorrupted adjudication can serve.
How did we wind up with a Supreme Court justice going on Fox television and members of the Senate Judiciary Committee screaming at the top of their lungs?
Eisen: The opponents of Kavanaugh in and outside the Senate had to be loud to be heard through the broken process — a continuation of the break in regular order that began when Merrick Garland was denied a hearing. Perhaps we all should have been as vigorous then. Kavanaugh and his supporters fought back with everything they had, breaking norms for partisanship. We need to find ways to work together; unfortunately, the majority leadership seems to be primarily interested in winning, not cooperation.
Can we fix the court without addressing larger problems with our politics, media and citizenry?
Tribe: In a broad sense, the Supreme Court necessarily reflects both the best and the worst of our politics and our culture. To that extent, whatever one means by “fixing“ the court, it’s not something that can be done without repairing the problems of profound division and broken discourse that beset our country. That said, I do think there are ways that the court as an institution could be marginally improved without necessarily changing the surrounding political and cultural landscape. I think that fixed nonrenewable terms of 18 to 20 years would make more sense than life terms at a time when life expectancy is so much longer than it was when life tenure for all Article III judges was put in place. I also think that, in a society as complex and diverse as our own, an 11-member court might make more sense than a nine-member court. Although I’m not ready to propose retaliatory court-packing, the badly broken confirmation process might ultimately become less fraught with dysfunction if the stakes were made less existential by replacing life terms with what I have in mind and perhaps by enlarging the court’s size to 11.
Eisen: We could pass legislation, for example, setting up an ethics code for the court, without intruding upon separation of powers. Solutions like that don’t require addressing the larger problems. Justices should serve 20-year terms, with every president getting to appoint at least one, to add more democracy to the selection process.
There has been much talk about a published code of ethics for the Supreme Court. What do you think?
Eisen: Why should common-sense mandatory ethics rules like those apply to every other government employee, including lower-court judges, but not the Supreme Court? All are ideas worth exploring.
Tribe: I favor your ethics proposal but am less sure than you seem to be that Congress could constitutionally impose a code of ethics on the court’s justices or even require them to promulgate and publish an enforceable code of ethics of their own satisfying congressionally specified criteria. Dictating criteria according to which the justices are to resolve issues of recusal is not all that different from dictating criteria according to which they are to decide substantive questions of law or fact, something the court has suggested would pose serious separation of powers problems.
Eisen: The question is unresolved, as Larry would agree. But my view is that if Congress can enumerate things like the number of justices, it can likely specify ethics requirements. In this case, it would be expressing the conflicts principles embedded in the Constitution itself — ones recognized by Caperton and its progeny.
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