“The Supreme Court must never, never be viewed as a partisan institution,” Judge Brett M. Kavanaugh observed at the start of his testimony before the Senate Judiciary Committee.
That was Sept. 4, just over a month ago, but it feels like an eternity — before the country was convulsed by accusations of sexual assault against the Supreme Court nominee, now on the brink of becoming the nation’s 114th justice.
Before Kavanaugh’s volcanic, partisan attack on the Judiciary Committee’s proceedings as the product of “a frenzy on the left to come up with something, anything to block my confirmation.”
Before the Senate, whose factional battles are never more fierce than when a Supreme Court seat is at stake, exploded into new heights of fury over the last-minute revelation of Christine Blasey Ford’s allegations that Kavanaugh attempted to sexually assault her when they were in high school, and over the grudging and inadequate FBI investigation that followed.
This is a dangerous, even scary, moment for the court — one in which Kavanaugh’s admonition against seeing the court in partisan terms seems laughably naive.
Indeed, even before the latest eruption of confirmation ugliness, that view was more fanciful aspiration than reality. Certainly, the view of the court as an institution above partisan politics was not furthered by Senate Majority Leader Mitch McConnell’s (R-Ky.) successful blockade of President Barack Obama’s ability to fill the vacancy left by the death of Antonin Scalia.
Certainly, it is not the way the president who nominated Kavanaugh envisions the institution. “We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!,” President Trump tweeted in March.
With the replacement of swing justice Anthony M. Kennedy, that instrumentalist Trumpian vision of Republicans definitively holding the high court is about to be made manifest. As law professors Neal Devins and Lawrence Baum have observed, the court is at a unique moment in its history, for the first time divided into clear blocs in which justices’ ideological views align perfectly with the political party of the president who appointed them.
And now, after the most partisan confirmation comments by a Supreme Court nominee in history, Kavanaugh is poised to win approval, if he does, by the narrowest and most partisan vote in modern history. Justice Clarence Thomas was confirmed 52 to 48 — with 11 Democrats supporting him. Justice Neil M. Gorsuch, confirmed 54 to 45, secured three Democratic votes.
For years, the justices have been keenly aware of the institutional stakes and the looming threat to their standing in an era of increasing partisanship and broad distrust of institutions. Chief Justice John G. Roberts Jr., speaking to constitutional scholar Jeffrey Rosen in 2006, following his first term on the court, emphasized the “high priority to keep any kind of partisan divide out of the judiciary” and the need to avoid having the court “seem to be lurching around because of changes in personnel.”
Late last month, as the Kavanaugh conflagration ignited, Justice Elena Kagan noted that “the court’s strength as an institution of American governance depends on people believing it has a certain kind of legitimacy — on people believing it’s not simply just an extension of politics, that its decision-making has a kind of integrity to it. If people don’t believe that, they have no reason to accept what the court does.”
But how much more difficult is it for people to “believe that” after all of this?
Perhaps Kavanaugh, after all the vitriol engendered by his nomination, will go out of his way to prove himself the collegial justice he promised to be, “a team player on the team of nine,” as he so soothingly put it. Perhaps, but history also teaches that pitched confirmation battles, whether for judgeships or executive-branch positions, also have the tendency to embitter the targets of opposition and cement them even more firmly in the embrace of their ideological compatriots.
Perhaps, as well, the chief justice will refrain from fully unleashing the power of his buttressed new majority, taking smaller and slower steps than he might otherwise. Then again, even justices are susceptible to some degree of peer pressure; Roberts has already suffered opprobrium from fellow conservatives for his supposed treachery in rescuing the Affordable Care Act.
And even the justices can dodge so much for only so long. The coming years will bring cases on the scope of abortion rights, the tension between gay rights and religious liberty, and the contours of the Second Amendment. These are all issues destined to expose the ideological divides on the court and that risk deepening the perception of partisanship that the justices, otherwise fractured, would unanimously agree is poisonous to their institution.