September 28, 2018 | Reading Time: 5 minutes
The Republicans Compromised Kavanaugh to Confirm Him
The Democrats can now use his partisan rampage against him.
Here at the Editorial Board, political analysis does not go down easy. It’s often downright bitter, and cold.
Today is no exception.
The Senate Judiciary Committee is meeting to vote this afternoon on Brett Kavanaugh’s confirmation to the United States Supreme Court. The full Senate will debate over the weekend. A vote goes to the floor Monday or Tuesday.
Though Christine Blasey Ford gave credible (and incredible!) testimony, that has not changed my earlier prediction that Kavanaugh will be confirmed. Nor have I changed my mind about another prediction. Within weeks of his confirmation, though probably after the midterms, states with Republican majorities will pass a number of laws, virtually overnight, that ban abortion.
These laws will be challenged immediately. They might even be fast-tracked to the Supreme Court. With Kavanaugh on the bench, the five conservative justices will uphold these abortion bans, creating a patchwork of laws across the nation that either protect or outlaw a woman’s personal liberty, depending on where she lives.
This is only one kind of ruling the Democrats can expect. They can also expect the high court to rule against a panoply of values the party stands for: women’s rights, minority rights, labor rights, etc. Quite literally, this is the end of an era in which they could depend on the court as a backstop. This is the conclusion of the story liberals have told themselves in which social justice prevails in the end. We are entering a new day. We have to see it for what it is.
To be sure, nothing is certain yet, but everything is nearly certain. Bob Corker, who is retiring, said yesterday he’d vote for Kavanaugh. More significant is Jeff Flake, who is also retiring. He is seen as someone who might fall out of line, providing cover for three red-state Democrats. This morning, he said he’d vote yes. That means Joe Manchin*, of West Virginia, Joe Donnelly*, of Indiana, and Heidi Heitkamp, of North Dakota, will probably follow suit. All three are up for reelection.
That’s the bad news. There is good news. But as I said, it’s cold and bitter. It probably won’t be comforting.
Yesterday’s testimony could have been worse. Kavanaugh could have come off as a cool and calculating nominee in the fashion of Justice Clarence Thomas. Thomas presented himself to the Senate in 1991 as the victim of a “high-tech lynching.” Though he exuded self-pity, as an African American man, he was credible. Importantly, he was not partisan. He blamed everyone for the spectacle of sexual harassment accusations that Anita Hill brought against him.
Not so for Kavanaugh. The appeals court judge presented himself as a wounded man outraged by the scandal surrounding him. He barked. He raged. A vein popped out of his forehead! More importantly, he accused the Democrats of ruining his life, of destroying his reputation, of bringing shame on his family. Forever. (His word.)
Deepening the partisanship were Republicans who deepened the impression that he was the real victim in this story, and that the Democrats were using Ford to smear his good name. (Actually, Lindsey Graham doesn’t think the Democrats are using Ford; he thinks Ford’s story is “garbage.”) Kavanaugh’s table-pounding was probably all the cover the Republicans needed to ram Kavanaugh through, but these unvarnished partisan attacks were costly. They compromised Kavanaugh as a justice.
Think about it. Justices are supposed to rule fairly, honestly, “blindly,” without fear or favor. Conservative justices, in particular, pride themselves for reading the Constitution as the founders intended it to be read. Before Kavanaugh’s table-pounding, it was possible to maintain the appearance of a neutral arbiter of justice (even if he’s really an apparatchik). The only people who’d take seriously Democratic complaints about his partisan rulings would be other Democrats.
Not after the table-pounding. He can’t claim to be a fair justice after shouting, literally screaming, at the Democrats about the damage they’ve done to him, his family and his reputation. He can’t claim to have been deprived of a fair hearing when he and his allies refused to involve the FBI. In the absence of an impartial fact-finding investigation, his confirmation can’t be seen as anything but a power play.
So he compromised himself. More accurately, the Republicans comprised him in order to confirm him. That means every 5-4 ruling handed down by the new court can be seen as Kavanaugh’s revenge against the Democrats. That image won’t just undermine the legitimacy of the Supreme Court. It will give the Democrats plenty of rationale for reforming the court in some fashion in order to protect the things the majority of Americans believe should be protected, like a woman’s right to privacy.
Let me be clear. I’m suggesting that the Democrats use Kavanaugh’s rampaging testimony against him after he’s taken his place on the court. I’m suggesting they accuse him of being nothing but a partisan. I’m suggesting the Democrats say a future ruling that upholds abortion bans are illegitimate. I’m suggesting that the Democrats participate actively in long-term erosion of trust in the third branch of government.
There is enormous risk to this suggestion. I can’t know what the fallout will be, but it could be very, very bad. But I don’t see how the Democrats can move forward otherwise. The party’s base will not accept defeat. It will demand abortion protections. It will push the Democrats to legalize abortion by federal statute. And when the court strikes down such a law, what then? Going to war with the court feels inevitable.
He has said he’d like to vote for Kavanaugh but said yesterday that if the nominee threatened West Virginia’s health care, he’d reconsider. This was a big caveat for a senator who’s made a TV ad in which he fires a shotgun at an anti-Obamacare lawsuit. If he gets enough pressure at home, he might vote against Kavanaugh. A big if.
He said this morning he demanded the FBI investigate before announcing his decision. This is a big deal. Donnelly and Manchin are expected to vote in sync with Republicans Susan Collins and Lisa Murkowski. Nothing verified yet, but if Donnelly wants to involve the FBI, that might mean the others will, too.
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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.