Analysis: Kavanaugh’s Partisanship Is An Existential Threat To The Supreme Court

Screengrab/ABC News/YouTube

Brett Kavanaugh would enter the Supreme Court as a "patient zero, carrying a virus of illegitimacy to its decisions".

Brett Kavanaugh showed beyond a doubt last week that he is the most partisan Supreme Court nominee to grace the confirmation process in recent history, delivering a scathing rebuke of the political left as he defended himself against sexual assault allegations.

As Ronald Brownstein notes in The Atlantic, if Kavanaugh is confirmed, the nation’s highest court will be tainted and tens of millions of Americans are likely to lose faith in its rulings.

> If Supreme Court Chief Justice John Roberts is truly concerned about preserving the Court’s legitimacy in American life, as he’s often suggested, Brett Kavanaugh has become his worst nightmare.


> After Friday’s Senate Judiciary Committee session, Kavanaugh is facing a renewed FBI investigation into the sexual-assault charges against him from Christine Blasey Ford. But even if that inquiry fails to produce decisive evidence, and Senate Republicans push through his nomination, the tactics Kavanaugh has already employed to preserve his candidacy are bound to stoke Roberts’s greatest fear.


> After Ford’s compelling testimony to the Senate on Thursday, Kavanaugh’s nomination seemed to falter. But the judge revived his prospects among Senate Republicans by delivering an unrestrained assault on committee Democrats and the rest of the political left, whom he accused of colluding to sink his nomination. Kavanaugh expressed more open partisanship in his angry diatribes than any other modern Supreme Court nominee. Senator Lindsey Graham of South Carolina quickly fed the blaze that Kavanaugh ignited with his own red-faced, finger-jabbing attack against Democrats. Each shifted the debate—from a question of the credibility of the competing accounts about the alleged assault to a test of tribal loyalty.

Brownstein said that a Justice Kavanaugh would invariably be “a patient zero” upon arrival at the Supreme Court — “carrying a virus of illegitimacy to its decisions”.

> That would create a stark equation for Roberts, who must surely realize that much—perhaps most—of the nation would question the validity of every 5–4 party-line decision in which Kavanaugh would provide the deciding vote. In the past, fear of further eroding the Court’s legitimacy has provided a limited (though hardly uniform) check on Roberts’s willingness to force major decisions on party-line votes. But if the Senate confirms Kavanaugh, it will present Roberts with a justice whose every decision will be viewed through the lens of the partisan and tribal animosities he inflamed to defend his nomination.



> No matter how his hearings unfolded, Kavanaugh’s nomination was destined to heighten the political storms around the Court. He would create an all-male, five-member, Republican-appointed majority that could control the Court until the 2030s; its oldest member, Clarence Thomas, is only 70. Kavanaugh was also chosen to create a more reliably conservative majority than was possible under Anthony Kennedy, who broke from his fellow GOP justices on some key issues (though less so in his final year).

What seemed a sure-fire confirmation just weeks ago now hangs in the balance, as the FBI reopens its background investigation to probe sexual assault allegations from Kavanaugh’s past — but if he comes up clean, that will not be the end of America’s issue with Trump’s second nominee.

> [E]ven if the Senate confirms Kavanaugh, his turn toward tribalism will follow him to the Court, like a stain on marble. The more he succeeds in the mission for which he was chosen—tilting the Court’s balance more reliably to the right—the more he will aggravate the animosities over his selection, and surface memories of the open partisan contempt he displayed during the process.

Read Brownstein’s full analysis here.