This Supreme Court nomination was always destined to become a brutal battle, given that Kavanaugh can turn what had been a swing vote when Anthony M. Kennedy held the seat into a solid conservative one that will shift the balance on the court to the right for many years.
If that weren’t reason enough for this nomination to produce political heat, there was the added factor that Democrats were still infuriated over Senate Majority Leader Mitch McConnell’s refusal to allow a vote or even a hearing on President Barack Obama’s nomination of Judge Merrick Garland in early 2016, after the death of the intellectual leader of the conservative bloc, Justice Antonin Scalia.
So this was a classic philosophical confrontation between left and right. Republicans started with a stronger hand and took full advantage. Trump waged the battle as he always does, with full-on tactics that the Democrats could, in the end, not overcome.
But it became more than a political power struggle over the direction of the court when Christine Blasey Ford accused Kavanaugh of sexually assaulting her when both were in high school, which was followed by other allegations of misconduct. All of this brought to the forefront a cultural awakening about the treatment of women by men.
Politically divisive events have become almost commonplace these days, but rarely do they play out so close to what already were seen as pivotal midterm elections. Which is why the most immediate impact of the Kavanagh confrontation will be seen in the midterm elections. The bases of both parties are now more energized than they were.
If those sentiments hold through Election Day, Democrats could benefit in the contest for control of the House, while Republicans could benefit in the Senate elections, thanks to the geographical realities of the most contested races.
If college-educated women are angry at the treatment of Ford, that will help Democratic House challengers in suburban districts held by Republicans and increase the odds of Democrats picking up more than the 23 seats they need for a majority. If Trump’s loyalists are suddenly energized, that could hurt red-state Democrats, which could help the GOP avoid losing control of the Senate. Republicans might even end up with an enhanced majority.
The Supreme Court could feel the effects over a longer period of time, now that it has been caught up in the political maelstrom. The court may be political in the broadest sense, but it is supposed to be seen as impartial, deliberative and, most of all, nonpartisan. That gloss has faded because of a series of events in recent years, but the Kavanaugh confirmation makes the problem far more acute.
Every justice must weigh the impact on the court, and Roberts now has one more unwelcome issue added to his personal docket as chief justice. But no one on the court will face more questions than Kavanaugh. His angry demeanor on the day he sought to defend himself against the charge of sexual assault by Ford could stamp him in the public’s perception indefinitely.
In defending himself against charges that he insisted were false and defamatory, Kavanaugh said things no modern Supreme Court nominee had ever said in trying to win confirmation: He attacked Democrats. He accused opponents of looking for payback because of Trump’s victory in 2016.
In a sign of just how much damage he had done to himself, Kavanaugh published an op-ed piece in Friday’s Wall Street Journal under the headline, “I Am an Independent, Impartial Judge.” He acknowledged that his “tone was sharp and I said a few things I should not have said.” He said his presentation reflected “my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character.”
What he did not address was the fact that some of the harshest, most partisan language came in testimony prepared in advance, words Kavanaugh explicitly said were his alone.
Twice, Kavanaugh went to the media, itself an unusual step. Twice, he chose outlets — the Journal’s editorial page and Fox News — whose audiences are conservative. That too was a sign that he accepted the role of partisan in this battle.
In the concluding paragraph of his op-ed, he wrote, “I believe that an independent and impartial judiciary is essential to our constitutional republic.”
The strategy he employed to save his confirmation raised questions about his judicial temperament. He will have an opportunity to answer the questions now surrounding him with his rulings, his writings and his judicial conduct in the coming months and years.
The Kavanaugh nomination played out at a time of growing awareness of the harm that has been done to women over years and years. It proved to be another consciousness-raising moment in the year of #MeToo and one that produced almost irreconcilable differences between partisans on the two sides.
For defenders of Kavanaugh, this was, as Trump put it, a scary moment for men who fear they can be falsely accused of sexual misconduct. They argue, as McConnell did repeatedly on Kavanaugh’s behalf, that no one was able to corroborate Ford’s charges, that “innocent until proven guilty” is still a fundamental principle of American justice. This view is also held by many women who are loyal to Trump, who have known and worked with Kavanaugh or who want to see more conservative judges appointed to the courts.
Kavanaugh’s opponents say there was never any intention of getting to the truth, that the FBI investigation launched a week ago was inadequate and incomplete and subjected to constraints by the White House. But that’s only part of why the episode was so searing.
For the defenders of Ford, and especially for women, Kavanaugh’s confirmation process left them wondering what, if anything, has really changed in the year since the New York Times published its first story about Harvey Weinstein. They will ask, why, when there was doubt about who was telling the truth — and there was doubt among many — the benefit of that doubt went to the man and not the woman?
All of that suggests that, even in an era of short attention spans, the Kavanaugh confirmation fight could be far more than a mere moment in time.