The confirmation of Brett Kavanaugh to the Supreme Court has capped the most brutal partisan judicial campaign in American history. For 40 years, movement conservatives plotted tirelessly and spent untold millions to install a solid hard-right majority on the court. Checked by the four appointments made by Bill Clinton and Barack Obama — and nearly undone by the sudden death of Justice Antonin Scalia — the Republicans would stop at nothing, including blocking the nomination of the moderate Merrick Garland by thwarting a constitutional process. On Saturday, they finally won by ramming through the appointment of a long-time GOP operative and conspiracy-monger who would save his nomination by brazenly lying to the world under oath about details large (not knowing about Deborah Ramirez’s allegations) and small (boofing? the devil’s triangle?) and doing so with a smug and angry smirk.
Still, terrible as Kavanaugh’s confirmation is and likely will continue to be for the Constitution and the American people, there may be a saving grace or two, but only if the Democrats can learn the right lessons and then fight as fiercely and tirelessly as the right wing has for these many years.
Let no one mistake the enormity of what’s just happened. Kavanaugh’s nasty role in the unconstitutional, partisan drive to remove President Clinton; his covered-up actions regarding both torture and controversial judicial nominations while serving in the George W. Bush White House; and his evident lack of truthfulness in previous sworn testimony to the Senate were enough to raise serious questions about his integrity. The ideological rigidity of his positions on the Court of Appeals raised further serious questions about his neutrality and open-mindedness. But those were grounds for opposition, not outright disqualification. It was his performance in response to the charges of Dr. Christine Blasey Ford that ought to have been disqualifying, as retired Justice John Paul Stevens (an old-school Republican) observed just prior to the confirmation.
I’ve heard it said on the public airwaves and in conversations with friends that Kavanaugh had every right to be angry, even furious, after being hit at the last minute with uncorroborated charges of committing a filthy and violent crime. But that argument only amplifies why Kavanaugh is unfit for the court.
Let’s hold aside for a minute that Dr. Ford’s charges were, in fact, strongly corroborated, not least by what she’d been telling intimates and therapists for years before Kavanaugh’s nomination. Let’s even assume, for the sake of argument, that Kavanaugh had nothing to do with any of the things Dr. Ford and the other two women claimed he did. Here would be an acid test of Kavanaugh’s temperament and suitability for the court, dealing with unfair charges that threatened his reputation — but by that standard, the standard invoked by his strongest defenders, he flunked miserably.
Since the nation’s founding, Americans have expected all members of the judiciary, above all the justices on the Supreme Court, to be able to hold their emotions at least reasonably in check — in their rulings, in their other writings and especially in their public pronouncements. We don’t expect them to be saints, but we do expect them to at least be better than most of the rest of us: That’s one reason we elevate them to the highest court. We don’t expect them to be wishy-washy, or to hold back one whit in arguing their interpretations of the law, but we do expect them to make their arguments reasonably, without rancor and without obviously closed-minded partisan allegiances. That ability to rise above the fray, the personal fray as well as the partisan, constitutes a large part of what’s meant by judicial temperament. It’s what gives the court its standing as disinterested and impartial, even in the most trying and embittered circumstances. Clarence Thomas managed to show such a temperament in 1991 when, offended and even seething at Anita Hill’s charges, he remained in command of himself and never crossed the line into gratuitous and insulting displays of fury.
Kavanaugh instead put on a calculated, unhinged performance. Perhaps he intended to intimidate the Democrats on the Judiciary Committee, turning the tables after Dr. Ford’s powerful testimony. Perhaps he intended to whip up support among President Trump’s already angry and resentful supporters. But in doing so, he acted, in his moment of truth, precisely in the way that the nation’s founders warned against as a threat to national comity and even-handed government. He lashed out at the Democratic Party and cooked up wild conspiracy theories to explain what he called his plight. He scorned and derided members of the Senate exactly as a trash-talking bully would. He blatantly lied about things he didn’t have to lie about, and practically dared anyone to do anything about it. Yet Mitch McConnell and the rest of the radicalized GOP would not let anything as trivial as historically disqualifying behavior stop them. No, they rejoiced in and encouraged that behavior, then stifled investigation into Kavanaugh’s lies.
With Kavanaugh now the fifth vote in a 5-to-4 hard-right majority, the court has come perilously close to losing its legitimacy on any matters even remotely connected to partisan concerns, ranging from voting rights and campaign-contribution laws to issues concerning women’s reproductive rights, environmental law, labor law, gun safety, corporate regulation and a long list of other crucial matters on which the court will certainly rule in the near future.
But maybe that loss of legitimacy is not the very worst thing that could have happened. After Kavanaugh’s performance and his strong-armed confirmation, the 5-to-4 decisions that ensue will at least clarify exactly what the long-term right-wing campaign has been all about. It’s had nothing to do with restoring the “original intent” of the framers of the Constitution, which has been transparent mumbo-jumbo propaganda from the start. It’s had nothing to do with reining in judicial activism. It has to do with unleashing judicial activism, in the form of judicial attacks on and possible repeal of fundamental laws as well as court decisions that have checked inequality and injustice, from the Affordable Care Act back to Roe v. Wade and the Voting Rights Act, and then back even further to the reforms of the New Deal and Progressive eras.
Above all, it is of a piece with a decades-long assault on democratic institutions that has set the pace for the illiberal counterrevolutions that are now sweeping though the Western world. As early as the 1950s, American conservatives and reactionaries understood that their plutocratic and racist causes were doomed unless they took radical measures. It wouldn’t suffice to be the kind of conservative who, as William F. Buckley remarked, “stands athwart history, yelling Stop.” It would be necessary to bend history to the right-wing will, which required more drastic action. It would require changing the very structure of American politics and government, taking aim at everyone and everything that stood in the conservatives’ way, from organized labor, which had become a bulwark of social reform and democratic politics, to the vindication of voting rights that upended traditional Jim Crow. And the extremists would have to do these things without appearing to violate the Constitution. They would use all of the legal tools that were available to them to undermine democracy, like gerrymandering; they would adopt scorched-earth strategies and tactics in Congress and state legislatures, abandoning any pretense of respect; they would scrap the Fairness Doctrine and build dynamos of hyper-partisan disinformation, above all Fox News; and, crucially, they would stock the judiciary with ideologues who would gut existing Great Society and even New Deal legislation and put their seal of approval on new reactionary triumphs.
Trump and Trumpism have been the logical outcomes of this long-standing attack on our democratic institutions. At a moment when, in the aftermath of Barack Obama’s re-election, mainstream conservative Republicans looked like they might soften their implacable appeal just a bit, on issues like immigration, Trump commandeered their base and pursued with a vengeance (and a madcap viciousness) the most extreme reactionary agenda, undoing as much as possible of not only Obama’s legacy but of the New Deal and Great Society and, atop that, repudiating the liberal democratic international order erected after World War II. And, coming full circle, those authoritarian regimes — from the right-wing governments in Poland and Hungary to Duterte in the Philippines, often with the backing of Trump’s great friend Vladimir Putin — have endeavored to build warm relations with the White House and vice versa, even as the White House trashes relations with the Western liberal democracies and the international alliances that sustain them.
The Kavanaugh confirmation is a landmark in the American counterrevolution. But in its starkness as well as its profound consequences — and by awakening us to the full dimensions of the counterrevolution — it can be a source of resolve, not despair. This is not the first time in American history where a reactionary minority has used the instruments of democracy to gain power over the entire national government. The Slave Power of the pre-Civil War years did precisely that, giving a tiny minority of southern slaveholders and their supporters a hammerlock on the White House, the Congress and the Supreme Court. Nor is the newly revised John Roberts Supreme Court the first high court in our history with a clearly reactionary agenda. The Roger Brooke Taney court of the 1850s, infamous for its Dred Scott decision in 1857, was dominated by partisan, proslavery justices; Abraham Lincoln (who didn’t actually dispute the court’s legitimacy as others did) was moved to repudiate the Scott ruling as “based on assumed historical facts which are not really true,” and basically vowed to appoint a new court. Eighty years later, Franklin Delano Roosevelt, trying to advance the New Deal, faced a Supreme Court that, in one commentator’s view, had “convinced even the most reverent that five stubborn old men had planted themselves squarely in the path of progress.”
Two generations of modern-day liberals and progressives, though, having come of age during the very different era of the Earl Warren court and its immediate successors, have grown accustomed to turning to the courts to expand civil and social rights, beginning with the landmark Brown v. Board of Education ruling in 1954. Even as the courts grew more conservative during the Reagan years and after, liberals and progressives looked to the courts to achieve victories on various fronts, most recently over gay marriage. An ever-growing downside of that strategy, though, was that liberal causes over the years may have grown more adept at designing legal strategies than in building mass support with the electorate. This reliance on judges helped secure the perception, endlessly drummed up by conservatives, that liberals were out-of-touch elitists who wanted to impose their will on the people through the courts.
If nothing else, the Kavanaugh confirmation makes it clear that those days are over – that until and unless Democrats can do something about it, the federal judiciary will be the enemy of the will of the American majority on numerous crucial issues. And what can the Democrats do? First, obviously, we need to vote Trump out while winning solid legislative majorities, not just in the House and Senate but in the governors’ mansions and state legislatures where so much of the assault on democratic institutions has taken place. But what then? How can Democrats undo the damage done to the federal courts over the past 35 years and ensure that their reforms will not be killed outright by the ideologically rigid judges and justices appointed since the days of Ronald Reagan, and being appointed at an unprecedented rate by Trump?
We can start doing it by, for once, playing for keeps and reforming the Supreme Court — not just by naming non-reactionaries to the bench, but by restructuring the court itself, as a growing number of commentators have suggested. The Constitution does not dictate that the court consist of nine justices. Originally, the court had six members, a chief justice and five associates; Congress then enlarged it, first to seven and then to a high of 10 members. In 1866, in order to thwart the racist president Andrew Johnson, Congress knocked the number down to nine. And in 1937, FDR tried to persuade Congress to allow the appointment of new justices to a maximum of 15. Republicans squealed at what they called Roosevelt’s court packing, and there was a public backlash. But under FDR’s threat, the existing court backed off of its reactionary stance and stopped killing New Deal reforms.
Should the current Supreme Court prove illegitimate — its majority tainted by the Merrick Garland outrage, the Kavanaugh bullying and the questionable legitimacy of the entire Trump presidency — and, as seems likely, the court starts striking down, in a string of 5-to-4 decisions, everything from Roe v. Wade to what remains of the New Deal’s National Labor Relations Act, Democrats ought to fight back with everything we’ve got, and pledge to the American people that we will do what FDR threatened to do and break the reactionary majority. We would do well to make that pledge as soon as the first 5-to-4 decision comes down. If that happens, and if the Democrats succeed, the Kavanaugh confirmation may prove a very different kind of turning point than it appears to be today — the moment when the nation finally awakened and began to destroy the extremist GOP’s subversion of American democracy. But none of that will matter if the Trump Republicans retain their control of Congress next month. Should the Democrats fail to win a majority, at the very least in the House, then the American majority will awaken to a true nightmare beyond its worst imaginings.