Why Kavanaugh’s Partisan Norm-Breaking Matters

Thursday’s testimony by Dr. Christine Blasey Ford and Judge Brett Kavanaugh were landmark political events that will not soon be forgotten. Dr. Ford’s testimony was gripping, moving, and deeply personal—among the bravest things that many of us have ever seen. Judge Kavanaugh’s response was stern, and his denials unequivocal. I have no special insight about what will happen next, as the FBI launches its abbreviated investigation into the allegations of sexual assault. However, Judge Kavanaugh’s openly partisan performance deserve special attention.*

There is no precedent in modern Supreme Court history of a nominee invoking partisan considerations so openly and directly. But Kavanaugh’s opening statement left no doubt that he blamed one party—Democrats—for what has happened over the past two weeks.

Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. Shortly after I was nominated, the Democratic Senate leader said he would, quote, “oppose me with everything he’s got.” A Democratic senator on this committee publicly — publicly referred to me as evil — evil. Think about that word. It’s said that those who supported me were, quote, “complicit in evil.” Another Democratic senator on this committee said, quote, “Judge Kavanaugh is your worst nightmare.” A former head of the Democratic National Committee said, quote, “Judge Kavanaugh will threaten the lives of millions of Americans for decades to come.”

The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking.

Those efforts didn’t work. When I did at least OK enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed.

Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits.

After I’ve been in the public arena for 26 years without even a hint — a whiff — of an allegation like this. And when my nomination to the Supreme Court was just about to be voted on, at a time when I’m called “evil” by a Democratic member of this committee, while Democratic opponents of my nomination say people will die if I am confirmed.

This whole two-week effort has been 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.

The partisan allegations here are serious and direct: Judge Kavanaugh believe that there is a conspiracy on behalf of the Clintons, perpetrated by members of the Democratic Party, to tarnish his name for political gain. Let us pause to note that this was testimony by a candidate for the Supreme Court, a body which exists to rule with no consideration for partisanship.

Now, no one who pays any attention to politics believes that the Supreme Court is a neutral and apolitical arbiter. One of the reasons that Supreme Court nominations are so politically contentious is because we know that justices have legal philosophies that lead them to rule in ways that particular parties and interests will favor. And there is a rich body of literature that shows how things such as public opinion shape Supreme Court rulings (see, for example, my colleague Peter Enns and Patrick Wohlfarth on “the Swing Justice“).

But prior to Thursday, there existed a consensus—unwritten, unenforced, but clear—that we would all not talk about the partisan nature of Supreme Court jurisprudence. Senators from one party would not say “we are nominating you because you will rule for us.” And nominees would not say “I will likely rule for you and that’s why you should pick me.” Even after Merrick Garland’s nomination was held up by the GOP-controlled Senate, for plainly partisan purposes, all public debate about Supreme Court nominations continued the narrative that nominees were to be judged by their quality of mind, their legal scholarship, and their respect for precedent.** It all aimed to protect a norm of nonpartisan jurisprudence.

So how does it matter that Kavanaugh has now made it clear that he blames Democrats for what he sees as a “coordinated and well-funded effort to destroy my good name and to destroy my family”? What difference does it make, more precisely, that Kavanaugh acknowledged openly that partisanship matters to him as a Supreme Court nominee, rather than participating in the public ritual of nonpartisan jurisprudence? Kavanaugh is certainly not the first Supreme Court nominee who has partisan views—far from it. What difference does it make that he said these things openly?

The most important consequence of Kavanaugh’s open partisanship is that it undermines the norm of nonpartisan jurisprudence. No reasonable observer will believe—given his strident, emotional delivery—that Kavanaugh is able to set aside his personal feelings and partisan views for any ruling that might affect the Democratic Party, either positively or negatively. Nor should they. No justice does, probably. But certainly not Kavanaugh, were he to be confirmed.

But the norm of nonpartisan jurisprudence is extraordinarily functional for giving legitimacy to an institution—the Supreme Court—whose decisions have partisan effects all of the time. For American democracy to function effectively, the losers from highly partisan Supreme Court decisions must believe that the process is legitimate even if they detest the outcomes. Imagine a world in which actors do not believe that any more.

There could be a second-order effect as well. Now, aspiring Supreme Court justices may come to believe that jurisprudence is an essentially partisan activity. Of course we have always known that judges angling to serve on the Supreme Court will rule in particular ways that make them attractive to one party or another. But once again, this was always subsumed under a broader and more diffuse concept of “legal philosophy” that allows partisan rulings to have legitimacy even to those who lose under them. What does a judicial system overseen by open partisans look like?

Sometimes it is actually a good idea to pretend that Supreme Court justices are not partisan, even if we know they are. Kavanaugh has made that impossible, and no partisan of any sort should welcome the consequences.


* There is, of course, so much more to comment on as well. The contrast between Justice Kavanaugh’s raw, aggressive emotions and Dr. Ford’s calm and at times apologetic delivery. The many falsehoods in Kavanaugh’s remarks. The list goes on.

** And, uh, whether or not there was a presidential election coming up.

Comments 2

  1. Eleanor Rankin Stowe September 30, 2018

    It’s very clear now that we no longer have three separate but equal branches of government that act as checks and balances on each other. We simply have two opposing parties that vie to control the three different branches. They line up by party now and protect their own. Period.

  2. Pavlos Papageorgiou September 30, 2018

    Sorry to see US society unravel like this. I think the theme of the entire Trump presidency, including his election, is to bring out beliefs that were commonly held but politely suppressed. For example many whites believe that the United States belongs to them by conquest and ancestry, and black or latino people have no claim but to be subservient labour at best. They’re type 2 racists*. Well, now they can have these racist beliefs in the open and driving the mainstream.

    This is obviously pretty terrible in the short term, but I think also inevitable and possibly a path to a healthier future. The US couldn’t really go forward without its latent racism coming out and being resolved for good or ill. Maybe the pretence of apolitical justice, obviously false when it makes rulings like Roe vs. Wade or Citizens United, has had its time and needs to be replaced with something new.

    Type 1 racists: These people are inferior
    Type 2 racists: This land is ours

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