The battle over the confirmation of Judge Brett M. Kavanaugh to the Supreme Court marks another significant step in the transformation of the high court into one more polarizing political body. It has been a long time coming. In the climate that exists today, it will not easily be undone.
The court has never been free from politics, but changes over time have generated the rawest of politics around the court. The names of Robert Bork, Clarence Thomas and Anita Hill, and more recently Merrick Garland, are some of the touchstones on this path. The case of Bush v. Gore, which decided the 2000 election, is another.
Add the parliamentary actions by former Senate majority leader Harry M. Reid (D-Nev.) and current Senate Majority Leader Mitch McConnell (R-Ky.), which eliminated filibusters for judicial nominations, and we have arrived at this fraught moment in the court’s and the country’s history.
Compared with Congress, long the public’s whipping boy, the Supreme Court is held in high esteem. A majority — 53 percent — of Americans said in July they approved of the court’s performance, according to a Gallup poll. That was higher than at any time since 2009. The Pew Research Center found recently that 2 in 3 Americans viewed the court favorably, which was 18 points higher than in summer 2015 after the court had legalized same-sex marriage and upheld the Affordable Care Act.
But perceptions of the court are shaped by partisan leanings and can follow the changes in the presidency. Three years ago, only a fifth to a third of Republicans looked positively on the court (depending on the wording of the question), according to Pew and Gallup. Today, with President Trump in the White House, last year’s confirmation of Justice Neil M. Gorsuch and the nomination of Kavanaugh, about 7 in 10 Republicans look positively on the court.
In June, a Quinnipiac University poll asked people whether they thought the court was motivated mainly by politics or mainly by the law. A majority — 50 percent — said politics. A Pew survey in 2015 found that 70 percent of Americans said the justices “are often influenced by their own political views,” with just 24 percent saying justices generally put those political views aside when deciding cases.
Recent nominees to the court, including Kavanaugh, have likened their role to that of fair-minded umpires dispassionately calling balls and strikes. Polling makes clear that the public has a more jaundiced view of things. So, too, do the politicians, which is why the Kavanaugh nomination stands where it stands today, at the center of a whirling political storm from the beginning and now further aggravated by accusations of sexual assault.
The stakes in the Kavanaugh fight could not be greater. His confirmation would shift the balance of the court in a conservative direction possibly for a generation. With filibusters no longer allowed on Supreme Court nominations, the need for anything approaching cross-party consensus in a closely divided chamber has disappeared.
Numbers are all that matter. A simple majority rules. If McConnell can hold all his fellow Republicans, the battle will be over. If not, he must hope that some embattled red-state Democrats fear that a vote against Kavanaugh will cost them their seats in November. Those Democrats will be calculating survival odds in both directions. For them, too, it’s about winning or losing.
Much now depends on the testimony of Christine Blasey Ford, who has accused Kavanaugh of a sexual assault when both were teens. How credible a witness will she be, and how will she be treated by Republicans on the Senate Judiciary Committee? If she testifies credibly, even more could depend on how believably Kavanaugh — who was not the most effective witness in his earlier hearings — presents himself. That is, unless minds are already made up.
Amid negotiations with Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Ford’s lawyers said Saturday she had accepted the committee’s request to testify about her accusation.
As the negotiations have dragged on, Republicans have increasingly ignored their own advice to treat Ford with respect. For four days, President Trump, at the urging of his advisers, was restrained. Then on Friday, he reverted to form with a tweet belittling Ford’s claims. The tweet was consistent with the president’s past behavior on the issue of sexual harassment or assault — to defend the accused (in some cases himself) and attack the accuser.
Trump’s impatience is shared by many Republicans. However much they claim they want Ford to testify, their statements indicate that they have already made up their minds on whom to believe. McConnell said as much Friday when he told an audience at the Values Voter Summit, “In the very near future, Judge Kavanaugh will be on the United States Supreme Court.”
Many Republicans believe that, on the cusp of a big victory, the clock was suddenly stopped. They are determined to start it again as soon as possible. Sen. Lindsey O. Graham (R-S.C.) likened the late arrival of Ford’s accusation to a “drive-by shooting,” adding, “I’ll listen to the lady, but we’re going to bring this to a close.”
Rep. Ralph Norman (R-S.C.) opened a debate Thursday night by saying, “Did y’all hear this latest late-breaking news on the Kavanaugh hearings?” He claimed to offer a joke: “Ruth Bader Ginsburg came out saying she was groped by Abraham Lincoln.”
Has nothing been learned during a year of #MeToo revelations? Do politicians today have no memories of the spectacle of the hearings into Hill’s allegations against Thomas? Is there no greater appreciation today than before of the reasons women do not come forward with these kinds of accusations? Is there no better understanding of why it can be years or decades before a woman is prepared to talk about what happened to her?
Like so much in political life today, the Kavanaugh confirmation battle will not end peacefully or with a resolution that satisfies both sides. There will be no splitting the difference on this. There was a time when politicians, after a bitterly fought election, would say, “That was the campaign, and now is the time for governing.” Those days are long gone, and the Supreme Court increasingly is caught in the same net as the rest of the political system.