“Politicians in Robes”: Brett Kavanaugh, the Supreme Court & American Democracy

On Saturday, October 6th, the United States Senate voted 50-48 to confirm Brett Kavanaugh to the United States Supreme Court, despite (or possibly because of) his overtly partisan and angry performance before the Senate Judiciary Committee in response to allegations of sexual misconduct brought by Dr. Christine Blasey Ford.

As I wrote last week in Brett Kavanaugh, Sweet Valley High & Rape Culture of the Eighties:

[Dr. Ford] was a highly credible witness — and it’s worth remembering that even under the higher standards of the criminal context, which this is not, testimony is evidence and there is no corroboration requirement. Meanwhile, when it was his turn to testify about the allegations, Kavanaugh perjured himself repeatedly, including by misrepresenting verifiable facts like the drinking age in Maryland and the definition of the terms he used in his sexualized yearbook entry.

But 50 Senators, almost all of them Republicans, still thought Kavanaugh was the man for the job, and so they gave him a lifetime appointment to our highest court.

The one Republican who did not support the GOP’s effort to confirm Kavanaugh, Senator Lisa Murkowski of Alaska, said on the Senate floor:

The Code of Judicial Conduct Rule 1.2 requires that a judge ‘act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.’ And I go back and I look to that. It is pretty high, it is really high, that a judge shall act at all times — not just sometimes when you’re wearing your robe — in a manner that promotes public confidence. Public confidence. Where’s the public confidence?

After the hearing that we all watched last week, last Thursday, it became clear to me, or it was becoming clearer that that appearance of impropriety has become unavoidable.

Senator Murkowski fears that confirmation of such a man will damage the reputation of the Supreme Court.

Yes, Kavanaugh tarnishes the image of the Supreme Court, which Americans tend to hold in high regard (according to a poll conducted over the summer).

But Kavanaugh certainly isn’t the first (allegedly) despicable person to become a justice. After all, many of our justices were slave owners who issued court opinions to perpetuate slavery and protect the powerful.

And while we do not expect justices to display their partisanship the way Kavanaugh did, the court has always been a partisan body that has never reflected the American people.

As James Macgregor Burns writes in Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, a readable account of the Supreme Court’s tumultuous history (published in 2009):

Most justices have been political activists — party politicos — before joining the court. Many owed their elevation to party ties, as a reward for loyalty, with every expectation that they will not turn coat on the court. Justices might shed party labels when they take their seats on the bench—newspapers don’t print (R) or (D) after their names when reporting decisions—but, with some notable exceptions, they do not abandon their party doctrines. Instead, they become politicians in robes.

Kavanaugh, a long-time Republican political operative, is certainly a “politician in robes,” and he joins the court to replace Anthony Kennedy, one of the five Justices responsible for the overtly partisan Bush v. Gore decision that ignored federalism principles and judicial norms to anoint George W. Bush, the Republican candidate, President of the United States.

Kavanaugh’s confirmation not only exposes the truth about our Supreme Court but also the truth about our country, showing us how profoundly undemocratic our “democracy” is. Let’s not forget that Kavanaugh was nominated by a president who did not win the popular vote and was then confirmed by senators who represent a minority of the population.

But what can we do about it?

In his book, James Macgregor Burns discusses the many attempts over the last two centuries to “curb the court,” including through impeachment campaigns, changing the number of justices, eliminating lifetime tenure (which would require a constitutional amendment), and abolishing judicial “veto” of legislation (a power that stems from Marbury v. Madison).

He explains, “Such proposals for change have never succeeded because they have never mobilized a large number of Americans behind them.”

And why not? Why haven’t Americans been angry as hell that the court Kavanaugh joins has never represented them and has rarely been responsive to their needs?

According to Senate Majority Leader Mitch McConnell (in response to a question about the anger over Kavanaugh’s confirmation): “these things always blow over.”

That may have been true in the past, but for the sake of our democracy, let’s hope it isn’t true anymore. We vote on November 6th.

 

7 comments

  1. I feel so angry about this. Knowing that the Supreme Court has always been terribly flawed helps a little — right now things feel extremely sort of apocalyptically bleak, and it’s — helpful? a little? to think that the country survives past shit like this. But yeah, I don’t know what to hope for re: Kavanaugh. I hope that we take back at least one of the houses in the fall. Thanks for posting this, my lovely intelligent friend. ❤

  2. Excellent, thoughtful post as always! Perhaps I’m cynical tonight, but I think the reason court-related controversies tend not to resonate is that SCOTUS is not an exciting or sexy topic. It’s incredibly important, and I think people realize that, but it’s just not easy for most people – especially most non-lawyer people – to get fired up about a bunch of old people in black robes. Especially when there are kneeling NFL players on TV. What gets missed, in my opinion, is that SCOTUS (and lower court judicial appointments, which no one pays attention to) is the linchpin to all of the issues that are making our heads spin. Kavanaugh is literally the breach in the last dam protecting our democracy. I just hope the Republic holds until we can stopper it. As you say – November 6!

  3. Thanks for this post, AMB. It has been a tough ride, even for those of us watching from north of the border. Today is Thanksgiving Day in Canada, and a popular satirical publication called the Beaverton has posted a satirical piece about what Canadians are thankful for: having a far less in-the-spotlight Supreme Court. https://www.thebeaverton.com/2018/10/canadians-thankful-they-cant-name-single-canadian-supreme-court-justice/ It might provide some light relief! Happy (Canadian) Thanksgiving.

  4. There should never, ever be lifetime appointments to any body that is part of our democracy. I support term limits for congressmen and women, too. Some of these people become so entranched, it’s nearly impossible to get rid of them. McConnell, for instance, has done irreparable harm to our country (by blocking the appointment of M Garland, for one example). By squatting in office for decades, they are able to set up an incredible system of favors, reward, and kickbacks, becoming wealthier from a position that was once seen as “doing service” to our country. What a horror our government has become. They used to work for us. No longer!

    1. I agree that there should be no lifetime appointments for any part of the government. At this point, though, there’s nothing that we can do. Those in power gain more power because they give it to themselves. Sure, I’m going to vote on November 6th, but it’s not going to do anything. I voted for Hillary Clinton, but Trump still won even though no majority wanted him. Add in gerrymandering and I don’t think voting counts anymore.

  5. The political nature of the supreme court in the US is something that seems wild to me, as an outsider – though we have lifetime political appointments in the House of Lords, we have independently-appointed justices in the Supreme Court here. Thank you for this analysis, which is really helpful to me in understanding a situation that I’ve found quite confusing to follow.

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