We focus, rightly, on the damage President Trump is doing to our institutions. But the wreckage goes beyond Trump and involves the other two branches of government as well. The right wing’s determination to control the Supreme Court is undermining its legitimacy as well as confidence in the U.S. Senate’s approach to confirming nominees.
For the GOP, nothing will be allowed to derail its effort to create a generation-long conservative majority on the court. And that helps to explain why Justice Brett M. Kavanaugh was railroaded through his confirmation hearings last year after what amounted to a pretend inquiry into the various charges against him.
The costs of this approach were underscored this weekend by a New York Times report that offers new corroboration for charges by Deborah Ramirez that Kavanaugh exposed himself to her when both were undergraduates at Yale. In denying the charge, Kavanaugh told the Senate that had it been true, the incident would have been “the talk of the campus.” Times reporters Robin Pogrebin and Kate Kelly — drawing on their new book, “The Education of Brett Kavanaugh: An Investigation” — write tellingly: “Our reporting suggests that it was.”
More than that, they report on an entirely separate incident involving Kavanaugh that Max Stier, a classmate of Ramirez’s, brought to the attention of the Senate and the FBI at the time of the hearings. It involved, they write, “a different drunken dorm party” where, according to the allegation, Kavanaugh had a different inappropriate encounter with a female student. Stier is president of the thoroughly bipartisan and widely respected Partnership for Public Service. From my experience, he is the last person who would want to get into the middle of an ideological fight — unless his conscience required him to.
Here is the institutionally devastating part of their story: Ramirez’s legal team gave the FBI a list of “at least 25 individuals who may have had corroborating evidence” of her story. The bureau, the authors report, “interviewed none of them.” Nor did the FBI look into Stier’s account.
Now let’s take a step back: If Senate Republicans had declared Kavanaugh’s behavior as a high school and college student off-limits, they would have risked a firestorm, but at least they would have been honest about what they were up to.
However, they could not take this route once they agreed to hear psychology professor Christine Blasey Ford’s four hours of testimony about her charge that Kavanaugh had sexually assaulted her in the early 1980s when both were in high school. Ford’s testimony was so credible — Republican after Republican praised her — that the GOP was forced to agree to a brief FBI investigation.
But it was such a sharply constrained investigation that neither Kavanaugh nor Ford was questioned, and the other allegations against Kavanaugh were ignored. “The process was a sham,” Sen. Amy Klobuchar (D-Minn.), a member of the Judiciary Committee who is seeking her party’s presidential nomination, said Sunday on ABC’s “This Week.” She was not being hyperbolic. In the wake of the new revelations, three other Democratic contenders quickly called for Kavanaugh’s impeachment.
This leaves it to journalists to keep exploring questions the Senate refused to settle. And it leaves the court and the country in a terrible place.
Senate Majority Leader Mitch McConnell (R-Ky.) had already signaled that court packing took priority over due process when he refused even to hold a hearing on President Barack Obama’s nomination of Merrick Garland to the court in 2016. This opened the way for Trump to name two conservatives to the court, Kavanaugh and Justice Neil M. Gorsuch for the seat Garland was denied.
The administration seems eager to flaunt the right’s new judicial power. In an in-your-face move, Attorney General William P. Barr will present the Attorney General’s Award for Distinguished Service — it typically goes to attorneys who worked difficult and important cases — to those who worked “to support the nomination” of Kavanaugh. Take that, libs and Kavanaugh’s accusers.
And the administration is developing the habit of skipping the normal appeals process to advance cases to a Supreme Court it has shaped to its liking. This drew a sharp rebuke from Justice Sonia Sotomayor in her dissent last week when the court overturned a lower court’s national injunction against the administration’s asylum policy. She said colleagues’ “precipitous” ruling “sidesteps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process.”
It was Kavanaugh who said in his opening statement to the Judiciary Committee at his 2018 hearing: “The Supreme Court must never, never be viewed as a partisan institution.” But it’s impossible not to view the court in exactly that way, thanks to a GOP determined to control it by any means at its disposal. It’s why questions — about Kavanaugh and the court itself — will continue to haunt us.