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When Democrats Retaliate

Kavanaugh's confirmation may convince them to destroy the Supreme Court in order to save it.

Alex Wong/Getty Images

Supreme Court justices don’t need an electoral mandate to do their jobs. But their latest would-be colleague may carry an anti-mandate of sorts. Brett Kavanaugh already had lower-than-average levels of support after he was nominated to replace Anthony Kennedy in July. Those numbers dropped even further after California professor Christine Blasey Ford said he sexually assaulted her in the early 1980s when they were in high school. (Kavanaugh has repeatedly denied any wrongdoing.) Now 38 percent of Americans oppose his confirmation, while only 34 percent support it.

Despite this discontent, Kavanaugh is still more likely than not to be confirmed to a lifetime seat on the Supreme Court within the next few weeks. He would reach the high court on the thinnest of margins, nominated by a president who received almost three million fewer votes than his opponent, confirmed by a Senate that gives disproportionate political power to less populous states, and sworn in amid historic levels of public opposition. Once there, he’ll likely fulfill the three-decade conservative quest to build a five-justice majority of staunch conservatives who could roll back precedents on abortion rights, affirmative action, and more.

So where does that leave Democrats? Between the scorched-earth process to put Kavanaugh on the Supreme Court, Mitch McConnell’s refusal to hold hearings for a moderate nominee like Merrick Garland in 2016, the seismic legal changes in which Kavanaugh will take part, and the shredding of all but a few remaining norms surrounding the Senate Judiciary Committee’s confirmation process, liberals are gravitating toward extraordinary measures to restore a semblance of balance to the Supreme Court—no matter the damage to the court itself.

Some of these fissures were inevitable. National Review’s Michael Brendan Dougherty presciently noted in January, months before Kennedy announced his retirement, that the court’s swing justice may have been the glue that’s holding the American political system together. Though no fan of Kennedy’s jurisprudence, Dougherty recognized that the justice’s tendency to form coalitions with a variety of justices helped preserve the court’s ideological balance of power and with it, public confidence in the court.

“Kennedy deals out victories and defeats to each side—giving slightly more defeats to social conservatives,” he wrote. “In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself.”

I don’t fully agree with Dougherty’s characterization. (As I’ve noted before, Kennedy’s votes on labor unions, voting rights, political gerrymandering, and campaign-finance reform have structurally tilted the American democratic process toward the Republican Party.) But his overall conclusion about Kennedy’s role in the nation’s political life is indisputable. Sandra Day O’Connor played a similar role as the court’s moderate stabilizer in the 1990s and early 2000s, as did Lewis Powell before her in the 1980s. But that function now appears to be at an end, and with it, the illusion of equanimity in American politics.

Kennedy’s departure and Kavanaugh’s ascension would leave Chief Justice John Roberts as the court’s median justice—a term I use in lieu of “swing justice,” because there is scant evidence that he will fulfill that role. The New York Times’ David Leonhardt suggested on Sunday that Roberts may yet follow Kennedy’s example, noting that the chief justice “clearly cares about the court’s credibility” and once voted with the liberal justices to save the Affordable Care Act. I am less certain. Unlike Powell, O’Connor, or Kennedy, Roberts is a product of the conservative judicial-nomination machine, which exists entirely to prevent Republican presidents from placing any more swinging jurists on the federal bench.

This is what conservatives wanted. Unless special counsel Robert Mueller finds evidence that Russian agents changed vote totals in the Rust Belt, the key event that placed Donald Trump in the White House wasn’t election meddling or James Comey’s letter to Congress. It was Antonin Scalia’s death. His passing in February 2016 left the Supreme Court evenly split between four conservative justices and four liberal justices. The vacant ninth seat had a tremendous psychic impact on the Republican Party and the conservative movement as a whole, and gave voters who otherwise may have been repelled by Trump an indisputable reason to vote for him: the prospect that Hillary Clinton would name a fifth liberal justice to the Supreme Court.

Perhaps the best example of this phenomenon is Ted Cruz. The Texas senator waged a bitter contest against Trump and publicly spurned him at the Republican National Convention that summer, citing the caustic insults to his wife and family. Two months later, after Trump released a second version of his Supreme Court shortlist, Cruz reversed course and endorsed the Republican nominee. He listed multiple reasons for the endorsement, but first among them was Scalia’s vacancy. “For anyone concerned about the Bill of Rights—free speech, religious liberty, the Second Amendment—the Court hangs in the balance,” he wrote in a statement.

Much of the American left is now waking up, albeit a little too late, to what five reliably conservative justices could accomplish—and will demand that Democrats, should they return to power one day, respond in kind. Post-Kavanaugh, Senate Democrats can now feel liberated to push through anyone to the ideological right of William Kunstler. They need not disclose all of the nominee’s records or even most of them—a fraction of documents will suffice, especially if they are vetted by a partisan lawyer instead of the National Archives. Any allegations of misconduct or impropriety won’t warrant a FBI investigation and can be safely brushed aside so that the nominee can entrench partisan political power.

Even then, that may not be enough for liberals scorched by Kavanaugh’s confirmation process. Some have already floated the idea of so-called court-packing: expanding the court’s membership from nine justices to eleven or more, giving a future Democratic president the opportunity to appoint two or more justices even if no vacancies arise. Legal scholars and political commentators alike have expressed some support for the proposition, including in this publication.

Such a move would be perfectly lawful since the court’s size isn’t defined by the Constitution. But it would permanently damage public confidence in its integrity, weaken its independence from the political branches, and turn it into something closer to a House of Lords than a constitutional tribunal. In 1937, fearing those results, lawmakers from both parties halted Franklin D. Roosevelt’s push to pack the court. No other president has attempted a similar maneuver since then.

Perhaps the most dramatic move for Democrats would be impeachment. In a New York magazine cover story, Jill Abramson laid out the case last year for impeaching Justice Clarence Thomas for allegedly lying to Congress during his confirmation hearing about sexually harassing Anita Hill and other women in the 1980s. “The idea of someone so flagrantly telling untruths to ascend to the highest legal position in the U.S. remains shocking, in addition to its being illegal,” she wrote. Some Democrats have begun floating a similar proposal to impeach Kavanaugh and remove him from the D.C. Circuit Court of Appeals if his nomination fails, or from the Supreme Court if it doesn’t.

Congress has used its power to try and remove federal judges for criminal misconduct multiple times throughout American history, but it has only sought to oust a Supreme Court justice once before. In 1804, the Jeffersonian-led House of Representatives impeached Justice Samuel Chase, an unabashed Federalist who made no secret of his political leanings. One of the articles of impeachment accused him of “tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.” The Senate declined to remove him, however, and thereby set the two-century-old precedent that federal judges should not be ousted for ideological reasons. The trial became a symbol of judicial independence, one of the United States’ least appreciated and most impressive accomplishments.

Will those precedents survive the next few years? The last generation of Supreme Court confirmation fights aren’t reassuring. Conservatives are still bitter about the treatment of Robert Bork in 1987, such that “borking” remains in common usage, and the allegations Clarence Thomas faced from Anita Hill in 1991. If Democrats have similarly long memories, the damage from the last three years could haunt the country and the court for at least thirty more.