Mr. Kavanaugh Doth Protest Too Much

Judge Brett Kavanaugh published an editorial in the Wall Street Journal today which headlines “I Am an Independent, Impartial Judge.” With all due respect, Judge, no, you’re not.

Kavanaugh wrote the editorial because that impartiality is vital to his ability to actually do the job of a Supreme Court Justice. The Court, unlike the other branches of government, lacks any way to actually implement its decisions. The President directs the bureaucracy, the Congress controls the budget, and the Court is just nine people sitting behind a very fancy desk across the street from the Capitol Building.

The Court depends on political legitimacy; it needs the American People to believe that it decides cases based on impartial, even-tempered, and well-considered points of law rather than in the furtherance of a partisan agenda. If the Court is independent its opinions carry the weight of learned gravitas. If it is a partisan tool, however, they carry no legitimacy at all, save with those that already agree with them.

That’s a huge problem. Historically, the Court acts to cement the rule of law by wielding that legitimacy. Certainly there are cases where the Court fell short (Cherokee Nation v Georgia) or was on the wrong side of history (Korematsu v United States) but while the high points of Court history are cases like Brown v Board of Education the role of the institution has much more to do with ensuring what’s etched across the front of the building: “Equal Justice Under The Law.”

And that is why Kavanaugh wrote his Op-Ed. Someone, somewhere put two and two together and realized that in his angry, belligerent defence before the Senate Judiciary committee, Kavanaugh undermined the very credentials that originally secured his nomination to the Court. Republicans favor the notion of “strict constructionism” or “constitutional originalism” but both of these philosophies boil down to the idea that the actions of the Court have legitimacy when they are clearly linked to the actual-text-as-written in the Constitution. In showing himself a partisan footsoldier, Kavanaugh ripped away that presumption of legitimacy.

Imagine a future case on some contentious topic. Kavanaugh sides with the Conservative majority of the Court and either authors or signs-on-to an opinion stating that the text of the Constitution provides no right to privacy. While that’s true — the Constitution’s text does not enumerate such a right — Kavanaugh’s outburst before the Senate will invite speculation that it is his partisan opposition to privacy rights rather than any considered reading of the text that motivated his decision. People who are upset with it will dismiss it, not as the august legal opinion of the Court but as the result of a naked, partisan power struggle.

States will defy the ruling. Lower court judges will either ignore it or try to find ways around it rather than respecting it as precedent. As a result, the uniformity of federal law will erode. Americans in California will find themselves living under a different interpretation of what should be settled law than people in Georgia.

If the Court becomes a partisan institution the result will be a Constitutional Crisis.

It’s happened once before. Back in 1932 the United States was in the grip of the Great Depression and President Roosevelt had been elected with a clear mandate to turn the economy around. By 1936, however, FDR’s New Deal had been frustrated in the Court by a group of four justices who were increasingly seen as partisans rather than impartial and fair. As the Court lost legitimacy, Roosevelt saw an opportunity for a solution and proposed the Judicial Procedures Reform Bill of 1937. The bill aimed to pack the Court; the Constitution doesn’t require that there be nine justices on the Supreme Court and, since removing them was difficult, Roosevelt's plan was to simply add more until the Court was less ideological.

A critical change in the position of Justice Owen Roberts cut the political legs out from under Roosevelt’s court reform bill, but the point was made. The Court can not be a partisan weapon in the hand of any one faction and still preserve its position and role in American government.

Consequently, when Kavanaugh’s protestations of his innocence veered into allegations of a “calculated and orchestrated political hit” undertaken as an act of “revenge on behalf of the Clintons” he disqualified himself from the Court. Poisoned by the toxic, paranoid, and conspiratorial rhetoric of the far right, Kavanaugh’s decisions will always now carry the taint of that partisanship with them. He can no more claim to preside as an impartial and fair judge than could Hillary Clinton.

Tell Congress What You Think

A Supreme Court appointment is for life and the person named to it brings with him or her all of their personal and political baggage. Naming a partisan hack to the Court will undermine the rule of law and encourage a constitutional crisis. You can tell your Senators how you feel about that by sending the word Resist to Resistbot on Facebook Messenger, Telegram, WhatsApp, or as a Twitter direct message. If none of those work for you, Resistbot also supports old fashioned SMS: text RESIST to 50409 to get started. It takes 2 minutes to make a difference.

Side Note

This article deliberately avoids any mention of the actual allegations against Kavanaugh, the FBI’s strictly limited investigation of them, and the Senate’s absurdly tight control of the resulting documents. That said I would invite readers to consider this post by gagetcool5 on reddit which outlines the extraordinary coincidences necessary for Dr Ford to guess the details she provided about that night.