On the eve of Brett Kavanaugh’s confirmation to the Supreme Court, not long after Senator Susan Collins offered the apologia that clinched his elevation, Justice Elena Kagan was asked how she and her colleagues managed to find comity and stay above politics — even at a time when Washington was burning with partisan rage over the soon-to-be newest member of the institution she loves.
Kavanaugh and the ugly politics of his nomination remained nameless, but Kagan all but conceded that with him on the Court, and Justice Anthony Kennedy gone, things won’t ever be the same. “Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way people see the rest of the governing structures of this country now,” Kagan said at a Princeton University event celebrating, of all things, the contributions of women to that institution. “In other words, people thinking of the Court as not politically divided in the same way, as not an extension of politics but instead somehow above the fray.”
The brute ascension of Kavanaugh to the Supreme Court, in one of the closest confirmation votes in all of American history, throws a wrecking ball at any remaining illusion, or shared conception, that the Supreme Court is the only apolitical, nonpartisan branch of the federal government. If everything Donald Trump touches dies, as Republican strategist Rick Wilson has written, his appointment of Kavanaugh is, in effect, the culmination of a campaign to capture and delegitimize every corner of our constitutional structure; the presidency, Congress, and now the Supreme Court all bear his imprimatur.
Kavanaugh fought hard for his attention. Snubbed from candidate Trump’s short list of Supreme Court candidates, he broke with security protocols and added a picture to his official biography, delivered speeches, chatted up his Washington friends, and ultimately got the primetime unveiling of a lifetime in the East Room of the White House. Before an audience of millions, the judge kissed the ring: He sucked up to Trump with the outlandish claim that the president has an abiding respect for the courts, and offered up a fabricated line about Trump being the most well-versed appointer-in-chief the republic has ever seen: “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”
That kind of sycophancy, which everyone in Trump’s sphere must deploy faithfully to remain in his good graces, bled right into Kavanaugh’s performance at his first confirmation hearing. Try as they did, Democratic senators couldn’t get him to say anything untoward about his benefactor. He wouldn’t defend Gonzalo Curiel, the federal judge on the receiving end of Trump’s racist invectives and doubts about his impartiality. Asked about the events in Charlottesville, and Trump’s both-sidesism in the controversy, he dodged the question as political — denouncing white supremacy was apparently a bridge too far for Kavanaugh.
But it was the judge’s incensed partisan diatribe at his second hearing, convened for him to answer to allegations of sexual assault by Christine Blasey Ford, a California psychology professor, that unquestionably sealed his fate as the next associate justice of the Supreme Court. Right before he delivered his screed, I pondered whether he’d lift a page out of the Anita Hill hearings, where an angry Clarence Thomas turned the Senate and public sentiment in his favor by lashing out against the “high-tech lynching” politicians were putting him through. Kavanaugh did that and then some: He dissembled under oath, talked back at Democratic senators, and huffed and puffed without evidence about being the target of a “political hit” — what he deemed “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” Thomas never went that far.
It was at that moment that Brett Kavanaugh became Justice Brett Kavanaugh — the first Trumpian nominee on the cusp of joining the Supreme Court. From there on out, facts didn’t matter. His lies about matters big and small didn’t matter. Ford’s credible testimony didn’t matter. His clear-as-day record against Roe v. Wade and didn’t matter. His subservience to executive power didn’t matter. His mountain of still-secret White House records didn’t matter. All that mattered was that his good name and image and pedigree and record as champion for women had been sullied by the Democratic machine, risking his appointment to a Supreme Court seat that he and the conservative legal movement saw as rightly his.
Enraged at this rank injustice, Republicans rallied around Kavanugh’s parade of grievances and demanded due process for his birthright. A “female assistant” was enlisted to provide cover for the true victim — Kavanaugh — and his gaps in credibility. With facts out of the way — and a Fox News interview and Wall Street Journal op-ed to make up for them — Kavanaugh’s place as Donald Trump’s man on the Supreme Court was secure. He was portrayed as a martyr for conservatives and for mothers concerned for their sons. A sham FBI investigation at the behest of an agonized Jeff Flake wouldn’t change that perception.
On a 50-to-48 vote, the Senate promoted Kavanaugh on Saturday to the seat left vacant by his former boss, Justice Anthony Kennedy — Ronald Reagan’s last appointee and also the kind of justice Republicans have vowed to never put on the high court again. Kavanaugh’s confirmation is the culmination of a five-decade campaign by conservatives to cement a true Republican majority on the Supreme Court — with no more Kennedys, David Souters, and Sandra Day O’Connors to derail efforts to erase once and for all the stain of Roe v. Wade.
It took John Paul Stevens, one of the four living retired justices from that nearly extinct brand of unpredictable Republican-appointed justices, to sound the alarm against Kavanaugh. But that too didn’t matter. “For the good of the Court, it’s not healthy to get a new justice that can only do a part-time job,” Stevens said on Thursday, referencing Kavanaugh’s unmasked partisan bias and the raft of demands for recusals that he’ll face as a sitting justice. Contrary to his public vow to be an independent, impartial judge, can anyone reasonably expect Kavanaugh to be fair in all the cases that matter? With the constitutionality of political gerrymandering still an open question, will Democrats ever get a fair shake? How about immigrants, voting-rights advocates, or affirmative-action defenders? Or any case or cause even remotely associated with “the left”?
With Kavanaugh on the Supreme Court, its legitimacy as a fair arbiter of our biggest differences no longer hangs in the balance; it’s fallen off it. “That Court is gone forever,” lamented Garrett Epps, a fellow Court observer and onetime believer in the majesty of its fairness and marbled halls. Like the deep state that is believed to resist Trump from within, it may yet fall to Justice Kagan or Chief Justice Roberts or whoever else fashions themselves an institutionalist to save whatever’s left of the edifice. With some Democrats already rumbling about Kavanaugh’s untruthfulness and the prospect of impeachment, there’s no telling what chaos awaits the new justice in the event of a Democratic takeover of Congress in November.
As for the rest of us, we’ll have to get used to the idea that the Supreme Court won’t save us. As legal scholar Jack Balkin put it in his latest essay in his series on “constitutional rot,” Kavanaugh’s rise is yet another symptom of the cancer that Trump has inflicted on our constitutional system — itself a product of our time’s intense partisanship. His prescription, which I recommend in full, doesn’t mince words: “The Supreme Court is unlikely to save us from decay. We will have to do that ourselves.”
