The Kavanaugh confirmation debacle has justifiably left people angry. We must continue to process the allegations against Kavanaugh, the limitations imposed on the FBI investigation, and the suppression of documents by the White House and Senate Republicans. But it is also time to get serious about reforming the Supreme Court.
The president and Republicans in the Senate have installed a radically conservative justice who was credibly accused of sexual assault and lied to the Judiciary Committee about matters ranging from his activities in the Bush White House to the meaning of his high school yearbook. They pressed ahead with a supremely flawed candidate to complete the right-wing takeover of the Court that has been a central Republican political goal for at least fifty years.
The Court is now indisputably a political institution in which Republican justices will move the law inexorably to the right in furtherance of the Republican agenda. By further weakening public confidence in the Court’s independence and neutrality, Republicans have damaged its legitimacy. Congress must begin to repair the Court.
Since Trump announced his nomination, Brett Kavanaugh’s confirmation campaign has been defined by an obvious effort to prevent the Senate and public from learning about large chunks of his professional and personal life. The coverup has included setting an egregiously rushed schedule while concealing 90% of the documentary record from his public service, presenting false testimony, and orchestrating an absurdly hasty FBI investigation into claims of sexual assault without a final process for evaluating its findings. The effort has morphed into a desperate effort to get Kavanaugh on the Court before the Senate and public learn more disqualifying facts. Success in doing so will damage the Senate and the Court.
The accusation by Dr. Christine Blasey Ford that a drunken 17-year old Brett Kavanaugh attempted to rape her has imperiled Kavanaugh’s Supreme Court nomination. Here are eight reasons why Judge Kavanaugh’s nomination may fail.
1. Dr. Blasey Ford’s credibility is virtually unassailable. She was reluctant to come forward. She had decided to remain anonymous and let the nomination proceed until reporters learned her identity and forced her to take charge of her story. She knew that telling her story would upend her life in unpleasant and permanent ways, as demonstrated by Anita Hill’s experience. There was simply no reason for her to come forward – particularly in this highly charged context — to tell a lie.
2. Judge Kavanaugh’s credibility has declined through his confirmation performance. He began the process by telling this bald-faced lie in the Rose Garden when Trump announced his nomination: “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination.” In reality, Trump outsourced the selection process to the Federalist Society and Heritage Foundation and engaged in the process less than any modern president. Kavanaugh’s candor suffered in his hearing from misleading statements about his involvement in the confirmations of Bush judicial nominees, Bush’s warrantless surveillance program and the detainee torture program. He stated falsely that he did not receive confidential memos stolen from the computer files of Democratic senators while working on judicial confirmations in the White House.
In past years, Constitution Day was an occasion for reverential praise for the genius of the Founding Fathers and exhortations for the country to live up to the promise of its charter. Some took the occasion to talk about the Constitution’s fundamental flaws (e.g., sanctioning slavery and excluding most of the population from the franchise). Others noted that our constitutional structure institutionalized distance between government and the people through such things as creation of an unrepresentative Senate, the electoral college, and granting states authority to draw and gerrymander districts. And many celebrated advances – often belated — through constitutional interpretation, such as the end of Jim Crow laws, expansion of gender equality, protection of the right to privacy, and the recognition of LGBT rights. All of this was done soberly, with purpose and some fanfare, but without a sense of crisis.
As the scheduled start of Brett Kavanaugh’s confirmation hearing approaches, Republican leaders have rejected calls for delay pending resolution of the Mueller investigation, responding that Trump is president and can exercise all of the powers granted to him by Article II of the Constitution. Fair enough, but then there’s Merrick Garland. Mitch McConnell never disputed President Obama’s Article II authority to nominate Merrick Garland, but he invoked a special circumstance – the election in seven months – to justify his refusal to process the nomination. McConnell’s stated reason was nonsense. His true reason was to keep the seat open for a Republican nominee at any cost, even if that meant refusing to consider a President Hillary Clinton nominee. He had no constitutional grounding for his inaction, but he had raw power and he established a new norm: that special circumstances justify the Senate’s thwarting of an exercise of Article II power, namely appointment of a Supreme Court justice. There exists, therefore, in Mitch McConnell’s Senate, no constitutional impediment to delaying – temporarily or permanently – the confirmation of a justice in the face of special circumstances.