What We Risk

JOHN WOOLLEY: What is at risk here?

It’s this question that echoes through my mind when considering the ramifications of what has unfolded over the course of this most recent Senate confirmation battle. The saga that was Brett Kavanaugh’s ascendency to the highest court in the land has dominated the press cycle for weeks. This makes sense, frankly. However rare consistent coverage may appear to be in the age of Donald Trump, the monumental nature of such a story certainly warrants the reporting it received. When Justice Anthony Kennedy announced his retirement from the Supreme Court back in late June of this year, one could foresee a high intensity conflict over who should be allowed to fill that newly opened seat. Conservatives largely called for the immediate filling of the vacancy. Liberals, meanwhile, sought a delay in this process on the grounds of recently established precedent regarding Senate confirmations to the Supreme Court.

The precedent being referenced here traces its origins back to 2016, prior to the election of Trump. In February of that year, Justice Antonin Scalia passed away, thereby leaving a vacancy in the Supreme Court to be filled by President Obama. The process of filling this vacancy, outlined in the second article of the Constitution, required the president to nominate an individual to undergo review and confirmation by the Senate before the seat could be occupied. This is standard practice, and as a result President Obama nominated Merrick Garland, the Chief Judge on the D.C. Circuit Court, to be elevated. Following his nomination in March, however, the Republican-controlled Senate stalled any attempts to hear the nomination. Republican leadership in the Senate did not allow a single meeting to be called about the matter, despite not having any precedent to go off of when using this dilatory tactic. To make up for this lack of historical precedent, there was an attempt to justify the stalling by the Republican leadership in the Senate. Specifically, Senate Republicans pointed to the upcoming November election as an opportunity to “let the American people decide” who should fill that vacancy.

Moving past for now how this justification does not hold up to scrutiny (Republicans were also on record suggesting they would hold the seat open for another four years if the American people decided they prefered Clinton), the fact of the matter is that this precedent was set. It was decided by the majority party in the Senate that in years before major elections, Senators have a responsibility to let the American people have a voice in who should be seated on the Supreme Court. Scalia’s seat was indeed held open for over a year, until it was ultimately filled by Trump’s nominee Neil Gorsuch in April of 2017. Regardless of one’s personal opinions about such a rule, it was carried out and now stands as an institutional practice the Senate is meant to follow.

Returning to the conflict following Kennedy’s retirement, the reason Democrats sought a delay in Kavanaugh’s consideration was because, just two years prior, Republicans had decided to delay Garland’s consideration on account of the upcoming election. Given that rule, it would follow that Kavanaugh’s confirmation would also be subject to a similar delay until after the ramifications of November’s midterm elections are clear. In fact, such a precedent should be of even more concern in this circumstance, given that this year’s election was even sooner for Kavanaugh than the presidential election was for Garland in 2016. Yet, despite their own precedent, Republicans took steps immediately to confirm Kavanaugh. In fact, they actually expedited the process, rushing through the general procedures while barely allowing for the collection of information about the nominee. This expedition of the confirmation procedures, when added to the laundry list of other concerns about this nominee in general, show just how abnormal this whole ordeal was.

Apart from breaking the GOP-set precedent, the Kavanaugh confirmation also saw over 100,000 pages of records withheld by the White House regarding the judge’s record, multiple instances of potential perjury by the nominee about his role and involvement with Bush-era torture policies, multiple indications that he was unafraid to politicize the Court and express hawkish animosity towards left-leaning public officials, and, most notably, multiple allegations of sexual assault and misconduct directed toward him by various women. All of this, combined with his peculiarly relevant views regarding broad presidential protection from criminal investigation, comes together to prove just how abnormal this whole process has been. And yet, he was confirmed. Now back to my question.

What is at risk here?

We risk the legitimacy of our courts and the people’s faith in its ability to make independent, just decisions. A large subsection of the public views this Justice as being a political operative rather than a freethinking interpreter of the law. For many, there will forever be an asterisk next to every conservative-leaning 5-4 decision to come out of the Court’s current body of Justices. The presence of this metaphorical asterisk is incredibly dangerous, suggesting cracks in the power of the Court to resolve conflicts and set precedent for the coming decades. The worst part about this is that those groups seeing Kavanaugh as illegitimate have very stable ground to stand on. He might have perjured himself. He might have been involved in Bush-era torture policy. He might be a sexual predator. These questions, ones that the confirmation process is meant to resolve beforehand, remain open and troublesome precisely because of the measures taken by Senate Republicans to avoid their own rules and precedent.

That is the core of the problem. There cannot be two different rulesets depending on who’s party benefits from any given situation. The GOP cannot decide to establish precedent pushing one institutional rule when it favors them politically, only to turn around and break it without hesitation as soon as it fits their agenda. These hardline practices are not only hypocritical, they are also literally dangerous to the foundations of the republic. They shake people’s faith in the Courts. They shake people’s faith in elections and whether they really mean anything to those who are elected. These are tenets of democracy, and yet the Republican party chose to fly against that grain, ignore the dangers, and confirm Brett Kavanaugh. They took that risk. I hope the independent judiciary makes it out intact.

Max Magid