Look Forward in Anger

By October 4 the FBI mini-probe into charges against Brett Kavanaugh was complete, leaving two of the three wavering Republican senators feeling sufficiently protected by its tiny fig leaf to vote him in. Democratic opposition by then had coalesced around the notion that whatever the truth behind Kavanaugh’s and Blasey Ford’s starkly divergent testimonies may be, the nominee’s testimony revealed a disqualifying failure of judicial temperament.

Certainly Kavanaugh’s performance before the Senate Judiciary Committee on September 27 was remarkable for its aggressiveness—so much so that the nominee himself published an op-ed in the Wall Street Journal explaining (but not quite apologizing for) his vehement tone. Acknowledging that “I might have been too emotional at times,” and that “I said a few things I should not have said,” he blamed it on “vicious allegations” and on “my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character.”

Along with the tone of Kavanaugh’s remarks to the committee, however, I’m interested in the unprecedentedly open partisanship they revealed—in their source and its significance, for our politics generally and the Supreme Court in particular. In his op-ed, Kavanaugh attempts to beat a retreat from that partisanship. Adopting the famous John Roberts metaphor, he asserts that “a good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy.” To this bromide he adds another. “The Supreme Court must never be viewed as a partisan institution,” he writes: “The justices do not sit on opposite sides of an aisle.” 

Too late! What was so dramatically revealed on September 27 can’t be taken back. For one extended tortuous moment, spurred by his own fury, Kavanaugh spoke the truth about his political views and allegiances. Raging at the Democratic side of the committee, sarcastically taunting his questioners, he blasted opposition to him as “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election...revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” The Clintons! As more than a few commentators noted, his diatribe could have been written by Sean Hannity. “Never before,” said Dianne Feinstein in her comments before last Friday morning’s cloture vote, “has a nominee displayed such open partisanship and flagrant hostility to this committee.”

How did we get here? In telling the story, and in accounting for the astonishing stance taken by Kavanaugh, we have to invoke one person the nominee did not mention: Merrick Garland. Because without Garland, there is no Kavanaugh. And I don’t simply mean that had Garland been confirmed to fill Antonin Scalia’s seat, Kennedy’s empty seat would probably be going to Neil Gorsuch. I mean that the failure to consider Garland’s nomination—the Senate Republicans’ refusal to take it up—ultimately shapes the kind of unprecedented partisanship and even the insolence that Kavanaugh displayed before his confirmation.

Let’s back up and acknowledge that getting us to this fractious place was a bipartisan political effort. There’s hardly a bigger mutual blame game in Washington (and that is saying a lot) than the one that ensues when you ask who’s responsible for the decimation of advise-and-consent in the judicial nomination process. Republican Senator Charles Grassley, in his opening salvo at the cloture vote, went straight back to the 1987 rejection of Robert Bork, portraying that event as the beginning of a web of plots by “left-wing groups” to keep conservatives off the court. While the Republicans cite Bork as the original sin, Democrats cite Republican obstructionism against Obama’s judicial nominees. As Jason Zengerle recounts, in a fascinating Times article about the Federalist Society and its role in shaping conservatism on the court, the conflict came to a head in 2013, early in Obama’s second term, when Republican Senators—a minority of forty-five at the time— refused to vote on nominees to fill three open seats on the DC Court of Appeals.

Frustrated by this and other instances of Republican obstructionism, Democratic majority leader Harry Reid, resuming a game of chicken both parties had intermittently played over the years, went ahead and decided to invoke the so-called “nuclear option,” eliminating the filibuster option for judicial nominations—excepting the Supreme Court. With this tool removed from the opposition’s toolkit, Obama filled one hundred seats in the next fourteen months.

Republicans fumed. “You’ll regret this,” Mitch McConnell warned, “and a lot sooner than you think.” He was right. The Republicans retook the Senate in the 2014 midterm elections, and McConnell, now the majority leader, began what Zengerle calls “a near blockade of Obama’s judicial appointments.” The blockade worked: where Bill Clinton, during his last two years in office, succeeded in getting seventy district- and appeals-court nominees through, and George W. Bush sixty-eight, Obama’s last two years saw a total of nineteen.

Republican payback culminated in Garland. No sooner did news of Scalia’s unexpected death filter out, in mid-February 2016, than the party’s leaders began insisting that President Obama shouldn’t even attempt to nominate a successor, arguing that no Supreme Court justice should be nominated in an election year. “The American people should have a voice in the selection of their next Supreme Court justice,” intoned McConnell. “This vacancy should not be filled until we have a new president.” Historically and constitutionally, as historian Timothy Huebner pointed out, McConnell was wrong. While the Constitution stipulates that the president shall appoint Supreme Court Justices “by and with the Advice and Consent of the Senate,” there’s nothing about deviating from this plan in an election year. Thirteen times in our history, prior to Scalia, a vacancy had opened up during a presidential election year. In eleven of these instances, the president nominated and the Senate acted—and in all five cases in which the vacancy happened during the first quarter of the year, the seat was filled. The notion that leaving a seat open in an election year is “common practice,” as Republican Senator Rob Portman of Ohio claimed, was simply wrong. And there was plenty of time. When Scalia died, Obama had 340 days remaining in office. The modern record for longest time between nomination and confirmation—Clarence Thomas—was ninety-nine days.

The Republican strategy at the time of Garland’s nomination was a desperate one: keep punting, then hope for a Hail Mary in the election. To everyone’s astonishment, the unthinkable happened: Trump was elected, and the strategy worked. But at what cost? Democrats, whose complacency about a Hillary Clinton victory had allowed them to relax in the face of Republican intransigence on Garland, now viewed the seat as stolen property, and responded by filibustering Trump’s first nominee, Gorsuch—whereupon Senate Republicans, once so bitter about Harry Reid “going nuclear,” pushed the button and blew away the filibuster for Supreme Court nominees. Predictably, Senate Democrats, with no procedural means of stopping a nominee—and still incensed about the stolen Garland seat—showed a readiness to do whatever they could to prevent Kavanaugh’s being seated. Whatever the truth behind the timing of the Blasey Ford disclosure, it’s clear that the Democratic strategy was to keep punting and get to November, then hope for the Hail Mary pass and take back the Senate. If they were able to pull it off, there’s not much doubt in my mind that we would have had an open seat for the next two years.

Sound familiar? George Will, in a Washington Post column, summed up the irony. Calling the insistence on waiting for a midterm election “an argument that Republicans richly deserve to have turned against them,” he observed that “it is as anti-constitutional and unconservative as it was in March 2016 when it was concocted for use against the nomination of Merrick Garland.”

Which brings us back to Kavanaugh himself. The Palm Beach Post recently reported on a talk given by the ninety-eight-year-old former Supreme Court Justice John Paul Stevens—a moderate nominated by Gerald Ford—to a group of retirees in Florida. Though he had earlier praised some of Kavanaugh’s rulings, Stevens told his audience that watching the nominee before the Judiciary Committee made him rethink. “His performance in the hearings ultimately changed my mind,” Stevens said. He made it clear that he wasn’t simply talking about temperament, but about political affiliation revealed in Kavanaugh’s tirades.  “He has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities,” Stevens said. Stevens surely was wondering, and worrying: What will future students of Court rulings think about a justice who made his political affiliations—and political enemies—so crystal clear?

Kavanaugh can apologize to Amy Klobuchar, he can backtrack in op-eds and try to soften the bellicose image he put forth in his appearance before the committee. But his behavior reflects quite clearly the increasingly partisan basis of the court. In specifically singling out Democratic senators and “the left” as the villains—in his open willingness, as a Supreme Court nominee, to go political—Kavanaugh abandoned the tradition of at least pretending to be non-partisan. The fig leaf is gone.

His angry ranting was more than the Trumpization of political discourse. In effect, it showed us that nominees are catching up to changes in the “advise-and-consent” process, changes galvanized by the Garland fiasco. These are not merely matters of decorum; they are structural changes. From now on, it is likely that the only time a Supreme Court nominee will be seated is when the White House and the Senate are in the same party’s hands, as is the case currently. This in turn means that it will no longer be necessary—indeed, no longer possible—to come up with moderate/consensus nominees, since no one from the opposing party will be needed to vote for them; and it also means that the opposition party will be driven to ever-more down-and-dirty tactics in a desperate attempt to stall and obstruct. More important are further consequences for the Court itself: lengthy periods when a seat (or even multiple seats) remain empty; increased pressures on elderly justices not to resign when it is politically inconvenient; ever-greater difficulty finding consensus and continuity in rulings; and the further polarization and radicalization of the court—in fact, a kind of schizophrenic court, since for every vacancy there will be either a hard-right nominee, a hard-left nominee, or (if White House and Senate are in different hands) no nominee at all.

Kavanaugh is the first court nominee whose behavior seems shaped by this new reality. His bellicosity, in other words, is no mere personal flaw, but rather a kind of Darwinian adaptation to the political environment created by the demolition of advise-and-consent, the demise of Senate collegiality, and the recognition that from now on, any Supreme Court seat will be openly political. Things are much more in your face. Anyone doubting that should replay the tape of Lindsay Graham fulminating in tune with the nominee himself.

The political and jurisprudential context of such aggressive partisanship is one in which we will have seen the end, perhaps, of justices like Sandra Day O’Connor, Anthony Kennedy, or Stevens himself—judges whose instinctive centrism and flexibility blurred ideological lines and allowed citizens to view the court as something other than merely political. Some, including some on the left, may actually welcome this change as a kind of institutional honesty. For his part, Justice Stevens, in his speeches and writings since his 2010 retirement, has made it clear that he laments the increasing partisanship and polarization of the judicial branch of government. It’s worth recalling that Stevens was one of three dissenting votes in Bush v. Gore, the case that ended the Florida ballot recount in the disputed 2000 presidential election, and effectively installed George W. Bush as president. “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is clear,” he wrote in a passionate dissent. “It is the nation’s confidence in the judge as impartial guardian of the rule of law.”

Given our current trajectory, it’s likely that Stevens represents the Supreme Court of the past, while Brett Kavanaugh is the face—the inflamed, angry, and distorted face—of the court to come.