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The Supreme Court Nomination That Tore the Country Apart

The ascendence of Brett Kavanaugh levied considerable damage to all three branches of government.
A student waits for fellow demonstrators for a rally on the U.S. Capitol East Lawn to protest the confirmation of Brett Kavanaugh on October 6th, 2018, in Washington, D.C.

A student waits for fellow demonstrators for a rally on the U.S. Capitol East Lawn to protest the confirmation of Brett Kavanaugh on October 6th, 2018, in Washington, D.C.

This was a fight we didn't need to have.

Confirming a new justice to the Supreme Court was undoubtedly going to be divisive. President Donald Trump has made a point of picking conservative, Federalist Society-endorsed nominees for the judiciary, and Democrats were certainly going to interrogate any nominee's stances on abortion, voting rights, campaign finance, sexual identity, and a laundry list of other issues the federal judiciary has been addressing in recent years.

But it did not have to be this nominee. It did not have to be Brett Kavanaugh. This nomination did not need to turn into a referendum on whether survivors of sexual violence should be believed when they accuse a powerful man. It did not need to ratify the absurd idea that anyone nominated to the high court is entitled to that seat unless it can be proven beyond a reasonable doubt that they committed a serious crime. It did not need to result in an accomplished woman appearing reluctantly before the Senate Judiciary Committee to describe the worst moment in her life only to be disbelieved and later ridiculed by senators and the president.

It is not at all unusual for presidents to withdraw nominees for the Supreme Court, the cabinet, and other prominent positions for relatively trivial matters. Ronald Reagan and George W. Bush both withdrew court nominees rather than demand that Senate Republicans press for embarrassing confirmation votes that could have split their party and the nation. Bill Clinton and Barack Obama pulled cabinet nominees for tax discrepancies. These presidents might have gotten their nominees through, but they chose to spend their political capital on more useful parts of their agenda.

Just about any other modern president would have pulled Kavanaugh's nomination as soon as allegations of sexual assault surfaced. Indeed, had they learned of Christine Blasey Ford's account when she first contacted her members of Congress, they probably wouldn't have nominated Kavanaugh in the first place. It's not that they automatically would have believed Ford. It's that there's no reason to have this fight when there are so many other perfectly able nominees with no such accusations pending against them.

Trump clearly wanted this fight to happen. He is sympathetic to powerful men who have been accused of sexual assault, and he seems eager to demonstrate that the accused are stronger than the victims. He also seemed quite enthusiastic to introduce this fight in the lead up to the mid-term elections as a way of tapping into white male identity, boosting Republican enthusiasm in a political environment that otherwise hasn't looked very promising for them. It's not just that Trump doesn't have other places to spend his political capital—this is just the sort of place he wants to spend it.

This nomination has managed to do considerable damage to all three branches of government. It made the presidency appear more petty than it already looked. The spectacle of Republican senators hiring a female prosecutor to speak to Ford rather than speak to her themselves, then dismissing and diminishing Ford once she was out of the room, and then approving an unpopular new justice on one of the narrowest confirmation votes in history while representing a minority of the population did much to undermine the Senate's legitimacy. And this is on top of denying Obama a court nomination in the final year of his presidency. Indeed, it is difficult to overstate the damage done to the Senate as a democratic institution through the past two court nominations at the hands of Mitch McConnell and his colleagues.

Finally, this has done a great deal of damage to the legitimacy of the Supreme Court, in no small part thanks to Kavanaugh's conspiratorial, partisan, and vengeful tirade during his confirmation hearings. Does any Democrat feel she or he would get a fair shake in Kavanaugh's courtroom? Yes, justices are political actors with ideological leanings, but rarely has one appeared so partisan, and the court is diminished as a result.

Imagine a 2020 presidential election between, say, Trump and Elizabeth Warren that results in a stalemate over which the court must rule. Many Americans profoundly disagreed with the court's divisive decision in Bush v. Gore (2000), but Al Gore's acceptance of it helped ensure its legitimacy. Would such a decision have any moral standing with Kavanaugh on the court? What about a ruling on a Trump exercise of executive privilege? Or on an abortion or sex discrimination case? Do we have any reason to believe Kavanaugh, or the court in general, would be putting personal biases aside to assess the constitutionality of a question?

I am sympathetic to the arguments that this moment will be, in the long run, good for the nation. That is, it stripped away the customs, rhetoric, and artifices of Senate and court politics to reveal the tribal struggles involved. It showed a patriarchy clinging to power to deny the reality that it has become a minority faction. It showed that justices are truly partisan politicians. Maybe it's healthy that we have these conversations and stop pretending our democracy is something more noble than it actually is. I very much hope that this argument is correct.

But my impression is that those artifices are integrally tied to the norms that keep a democracy functioning. As Bloomberg's Jonathan Bernstein notes, it's difficult for the court to do much of anything without that fig leaf of principle intact.

In their book How Democracies Die, political scientists Daniel Ziblatt and Steven Levitsky claim that forbearance is one of the key features of a functional democracy. It means that political players do not do absolutely everything within their power to achieve their aims. Trump, McConnell, Kavanaugh, and their allies have overtly violated this norm in the past few weeks, and they have been rewarded for the effort. Regardless of one's view of Kavanaugh's qualifications, this is not a moment for great optimism in the democratic experiment.