The Senate’s take-no-prisoners partisan warfare over U.S. Appeals Court Judge Brett M. Kavanaugh’s Supreme Court nomination and Kavanaugh’s own decidedly injudicious denunciations of his political enemies have placed the court in an unwelcome spotlight as it begins a new term Monday.
The political underpinnings of the court — conservative justices nominated by Republican presidents, liberal ones named by Democrats — are never far from the surface. But justices on both sides strive to stress that ideological rather than partisan concerns account for their disagreements.
The open warfare over Kavanaugh has left the court with more than just an empty chair at the end of the bench.
“After this, public perception is going to increasingly be that it’s more a political body than a judicial one,” said Benjamin Barton, a law professor at the University of Tennessee who studies the federal judiciary. “To me, this will be a disaster for them.”
Added Jonathan Peters, a media law professor at the University of Georgia. “The court is a political institution, yes, but as much as possible it’s critical for the justices to be — and be regarded as — impartial, trustworthy and above the political fray. The justices have reason now to be concerned.”
Supreme Court Justice Elena Kagan said as much late last week at an appearance at the UCLA School of Law.
She steadfastly stayed away from questions about Kavanaugh, but she worried about public perception.
“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,” Kagan said, according to coverage in the student newspaper, the Daily Bruin. “If people don’t believe that, they have no reason to accept what the court does.”
Kavanaugh, a 12-year veteran of the U.S. Court of Appeals for the D.C. Circuit, rejected attempts to paint him as a political warrior in his first appearances before the Senate Judiciary Committee. “The Supreme Court must never be viewed as a partisan institution,” he said.
But he came out swinging Thursday with his nomination hanging in the balance. “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups,” he said in what will probably be the enduring sound bite of the hearing.
President Trump immediately graded his nominee’s work, calling his words “powerful, honest and riveting.”
He added in his tweet: “Democrats’ search and destroy strategy is disgraceful and this process has been a total sham and effort to delay, obstruct, and resist.”
Other Kavanaugh supporters said the judge’s raw 45-minute opening statement was exactly what should be expected from a man who felt his entire career was being undermined by uncorroborated allegations encouraged by Democrats and liberal interest groups intent on keeping him off the court.
“Senators have a choice: endorse a smear campaign or support Judge Kavanaugh,” said Carrie Severino of the Judicial Crisis Network, a key group supporting the nomination.
But those who watch the court speculated on how the testimony went over across the street, at the Supreme Court.
Justices pride themselves on disagreeing without being disagreeable, said Justin Driver, a law professor at the University of Chicago.
“The goal is to keep disputes far away from the personal front and to keep the focus on overarching legal issues,” he said. “I would be utterly shocked if any member of the current court believed that Judge Kavanaugh’s conduct during Thursday’s hearings reflected those norms.”
Part of the problem is that Kavanaugh’s tough talk about his political opponents recalled his service in the George W. Bush White House, as well as his key role as part of Kenneth W. Starr’s investigation of President Bill Clinton.
In reiterating his opposition to Kavanaugh on Friday, Sen. Richard J. Durbin (D-Ill.) noted Kavanaugh’s reference to the Clintons.
“This ‘lock-her-up’ grace note in Judge Kavanaugh’s remarks may have raised a cheer in the White House, but it is a sad moment in the history of this committee,” Durbin said
The closest comparison, of course, came decades ago.
Dennis Burke, who was a Democratic counsel for the Senate Judiciary Committee during the Clarence Thomas hearings, said he felt a sense of “deja vu” last week. Both showcased a Senate nomination process that was bitterly political, unpredictable and ultimately unflattering.
“The American public doesn’t really spend as much time watching the Senate as they did in the last couple of days,” Burke said. “People look at that now and say this is not a functional process. This isn’t really a proper fact-finding or a full investigation — it’s just a political process. Certain senators weren’t even talking to the American public. They were just focused on: ‘How do we get to 51?’ ’’
Of course, a string of nominees has been confirmed since then with little of the controversy that has attended Kavanaugh’s process. Sen. Lindsey O. Graham (R-S.C.) said that the reason for that had more to do with the court than the nominee.
Kavanaugh’s replacement of Justice Anthony M. Kennedy is immensely important, as it would install a solid conservative majority on the court for a generation. Issues such as abortion, affirmative action, LGBT rights and government deference to religious beliefs are in the balance.
But Graham warned he was watching the Democrats’ actions and that they are in danger of permanently changing the way judicial nominations are handled.
“There’s the process before Kavanaugh, and the process after Kavanaugh,” he said.
If Kavanaugh’s most important audience Thursday was the president who nominated him, those who analyze the court were wondering about the reaction of Chief Justice John G. Roberts Jr.
Kavanaugh’s confirmation would put Roberts in the central position on the court, with the ability not only to often determine the outcome of cases but also decide how far and how quickly to move the law.
He takes his role as chief justice seriously — the nation has had only 17 of them — and has tried to protect the reputation of the court as nonpartisan. Politicians do not make it easy, he said in a 2016 speech.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.
“And that’s just not how — we don’t work as Democrats or Republicans.”
The court’s docket so far is relatively uncontroversial, and some believe the justices would like to keep it that way.
“It is in the chief justice’s DNA to move gradually rather than quickly,” Kannon Shanmugam, a lawyer who practices before the court, said at recent Supreme Court discussion at Georgetown University Law Center.
With only eight justices, the court last week added only a handful of fairly uncontroversial cases to its docket.
But sometimes things are beyond the justices’ control. Nicole A. Saharsky, a Washington lawyer who has argued extensively before the court and does some work for Planned Parenthood, said some states have passed laws restricting abortion that are “flatly unconstitutional under current precedent.”
If presented with a such a case, would the court agree to reconsider precedent or wait? And challenges to Trump administration policy changes on undocumented immigrant children and transgender service in the military might require the court’s intervention.
The outcomes could be determined by whether there are eight justices or nine.