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.