the kavanaugh hearings

Why Conservatives Could Regret Confirming Brett Kavanaugh

“Owning the libs” will come at a high cost. Photo: Tom Williams/Getty Images

In his opening statement to the Senate Judiciary Committee on September 4, Brett Kavanaugh said that “a good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.”

In his opening statement to that same committee Thursday afternoon, Kavanaugh declared himself the victim of “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.”

By deploying that latter argument, Brett Kavanaugh probably won himself a seat on the Supreme Court — but also, cost John Roberts’s majority something just as precious.

Over the past ten years, the Roberts court cleared the way for unlimited corporate spending in American elections; vetoed an Arizona law that attempted to limit the influence of such spending by providing candidates with public funds; gutted the Voting Rights Act of 1965; legalized most forms of political bribery; immunized prosecutors who withhold exculpatory evidence from legal accountability; restricted the capacity of consumers and workers to sue corporations that abuse them; hobbled public-sector unions; and invented an individual right to possess firearms (among many other achievements).

Which is to say: Even as Barack Obama occupied the White House, the conservative movement made steady progress on implementing key pieces of its agenda (and came within one vote of nullifying the signature piece of Barack Obama’s) – thanks to the judicial activism of five, unelected male judges. What’s more, many of those agenda items had the secondary effect of improving the Republican Party’s electoral prospects: By weakening labor unions, limiting federal enforcement of voting rights, and sanctioning unlimited corporate spending on elections, the conservative justices bolstered the GOP at the ballot box.

And Democratic voters thanked them for it!

Before Anthony Kennedy’s landmark decision on gay marriage, Democrats already expressed a higher opinion of the Supreme Court than their Republican counterparts; afterward, blue America’s approval of the Supremes shot up into the stratosphere. As Sean McElwee has noted:

Democrats were more likely to approve of the court than Republicans by an average of a 14 point margin from 2010 to 2014. This gap increased only to a 32-point margin in 2016 (the chart excludes “don’t knows”), even while the court decided cases like Trinity Lutheran, in which the court required the government to subsidize churches.

Illustration: Sean McElwee/CCES
Photo: Sean McElwee/CCES

The Democratic electorate’s sunny view of the Court was surely shaped by many factors, among them the prominence of the Warren Court’s civil rights decisions in American history books, and Anthony Kennedy’s occasional heresies on highly salient issues of social liberalism. Nevertheless, it is impossible to understand how Democratic voters could have voiced approval for what was, in the aggregate, the most conservative decade of Supreme Court jurisprudence in modern American history without stipulating that they genuinely believed in the justices’ good faith. Try as they might, the more radical wing of the progressive base couldn’t persuade ordinary Democrats to see the court as a partisan, anti-democratic policy-making body whose power must be questioned and contested.

With Kavanaugh on the court, the radicals will.

Already, Democratic operatives are discussing the role that calls for Kavanaugh’s impeachment will play in the 2020 primary. The formation of a (potentially) anti-Roe majority was always likely to increase the salience of the Supreme Court to the Democratic base. But the formation of an anti-Roe majority secured by the confirmation of an alleged sex criminal and self-professed enemy of the Clintons — who spent his final confirmation hearing openly disrespecting Democratic senators and telling bald-faced lies — will mobilize Democrats against Roberts’s majority in an unprecedented (and wholly avoidable) way.

From one angle (and only one angle) then, Senate Republicans will be doing progressives a favor by confirming Kavanaugh. Were President Trump to withdraw Kavanaugh today — and replace him with a less incendiary far-right justice — it is overwhelmingly likely that said justice would win confirmation before the next Senate is sworn in. And a conservative majority that didn’t include a justice as divisive as Kavanaugh would be one far more capable of handing down radically reactionary decisions without facing political blowback.

By all accounts, John Roberts is deeply protective of his court’s legitimacy — which is to say, the public perception that its authority is just. Many informed observers have speculated that it was this very protectiveness that prevented Roberts from voting to strike down the Affordable Care Act with his four conservative colleagues. To the extent that Roberts believes himself to be constrained by public opinion, putting Kavanaugh on the court — instead of a Gorsuch clone — could actually substantively hamper the conservative project.

And if doesn’t — if the new conservative majority continues its steady march toward Neo-Lochernism — then Kavanaugh’s confirmation will increase the likelihood of a direct confrontation between a Democratic Congress and the Supreme Court at some point in the medium-term future.

There is little sign that the Republican Party is capable of fundamentally reforming itself. Its plutocratic donor class has a firm grip on its fiscal agenda, while its nationalist (and increasingly authoritarian) primary electorate has veto power over its racial politics. Further, the structure of the American government all but ensures that the party of revanchist, rural whites will retain a significant base of regional support, even if its brand of politics ceases to be competitive in national elections (as current demographic trends suggest that it will) — a fact that will further hinder the party’s capacity for ideological adaptation.

Given this reality, there is a good chance that the GOP’s primary source of federal power in the coming decades (or, at least, during significant portions of the coming decades) will be its vestigial claim to the judiciary. And that claim will be much less valuable if Democratic voters come to see judges as mere legislators in robes. After all, it only takes 51 Senate votes to end the legislative filibuster — and then simple majorities in both Houses (and a president’s signature) to pack the court, or else, radically reform its structure. If the Supreme Court is seen as a team of neutral umpires, such reforms will remain beyond the pale; if they’re seen as a partisan policymaking body, such reforms could become unavoidable.

All of which is to say: The conservative movement may win the battle over Brett Kavanaugh; but if so, they will give progressives a leg up in the war for America’s future.

Why Conservatives Will Regret Confirming Brett Kavanaugh