The American conservative movement’s long march to install a reliable five-justice majority in its own image is over. On Monday, Justice Brett Kavanaugh will take his seat on the Supreme Court for the first time, with the opportunity to shape the contours of legal and constitutional interpretation for the next three or four decades. Behind him lies a trail of political wreckage that will reverberate for years to come.
The Senate confirmed Kavanaugh Saturday in a 50-48 vote, one of the thinnest margins for a prospective justice in the court’s history. Two key Republican senators, Susan Collins and Jeff Flake, voted for his confirmation, as did a lone Democrat, Senator Joe Manchin. (Republican Senator Lisa Murkowski was also opposed, but voted present as a courtesy for Montana Senator Steve Daines, who supported Kavanaugh’s confirmation but couldn’t make it to Washington for the vote.)
Justice Kavanaugh, who takes the seat vacated by recently retired swing Justice Anthony Kennedy, is now a one-man legitimacy crisis for the court. He will be the most unpopular nominee to be seated on the high court in the modern era. The president who nominated him consistently enjoys record-low approval ratings, received nearly three million fewer votes than his opponent in the last election, and may have conspired with a hostile foreign power to win it. The Senate that confirmed him went to extraordinary lengths to shield Kavanaugh from anything resembling due diligence, even before multiple women came forward with allegations of sexual assault.
Christine Blasey Ford and Debbie Ramirez told journalists last month that Kavanaugh had sexually assaulted them in high school and in college, respectively. Some observers expected a repeat of the Anita Hill hearings during Clarence Thomas’s bitter confirmation process in 1991. They were wrong; it was much worse. The all-male Republican majority on the Senate Judiciary Committee only let Ford testify before the committee. They then hired an outside prosecutor to interrogate her during her hearing, rather than doing so themselves. When it was Kavanaugh’s turn, they tossed aside the prosecutor and spent the bulk of his hearing praising him for his seething partisan anger at the allegations. Trump mocked Ford at a rally for perceived inconsistencies in her testimony while his White House blocked FBI investigators from interviewing more than 40 potentially corroborating witnesses, as well as Ford herself.
It was a national disgrace. It was also Trumpism at its finest: raw power, stripped of any pretense or principle, hostile to scrutiny and judiciousness, exercised purely in self-interest. In theory, over the last few weeks, any two Republican senators could have forced Trump and McConnell to withdraw Kavanaugh and put forth a more suitable conservative jurist. They could have demanded a nominee who would be less toxic to the Supreme Court, the Senate, and American political life. There were no shortage of alternatives waiting in the wings. But with the lone exception of Murkowski, who said Kavanaugh was not the right choice for the court, Senate Republicans eventually fell in line behind the nominee. As a result, Trumpism has infected the Supreme Court.
In 2017, Justice Neil Gorsuch made a convincing effort to separate himself from the partisan fray during his own hearings. He called Trump’s vehement attacks on federal judges “disappointing” and “disheartening,” a mild rebuke that reportedly led Trump to consider rescinding his nomination. Kavanaugh refused to echo Gorsuch’s placid critique of attacks on that independence when asked about it by senators last month. Though he told the committee during his first opening statement that judicial independence “is the crown jewel of our constitutional republic,” he spent the days and weeks thereafter tarnishing it.
The turning point came during Kavanaugh’s angry diatribe when he testified about the sexual-misconduct allegations against him. “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups,” he told the committee in his opening statement. He then offered what could be seen as a veiled threat: “And as we all know in the United States political system of the early 2000s, what goes around comes around.”
Nakedly partisan and baselessly conspiratorial, the statement disqualified him for a position on the Supreme Court. His subsequent testimony only made things worse. Kavanaugh was hostile in demeanor and evasive in substance when interacting with Democratic senators. The worst moment came in an exchange with Minnesota’s Amy Klobuchar. A few minutes after noting that members of her family had wrestled with alcoholism, she asked Kavanaugh if he had ever been so intoxicated that he didn’t remember everything. The possibility could explain gaps between his account and those of Ford and Ramirez; perhaps he simply didn’t remember what happened. “You’re talking about blackout—I don’t know, have you?” he responded. (He later apologized for the retort.)
The overall performance was nothing short of catastrophic for the American principle of an independent judiciary. John Paul Stevens, who retired from the Supreme Court in 2010, told an audience in Florida on Thursday that he had written favorably about the judge in one of his books and had thought he was qualified for the job. But Kavanaugh’s remarks changed his mind, he said. “They suggest that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities,” Stevens said. “For the good of the court, it’s not healthy to get a new justice that can only do a part-time job.”
The blowback from the American legal community was widespread. More than 2,400 law professors signed an open letter that said Kavanaugh had “exhibited a lack of commitment to judicious inquiry” and urged the Senate to reject his nomination. The American Bar Association said it would reassess its conclusion that he is “well qualified” for the Supreme Court. In a last-minute Wall Street Journal op-ed, Kavanaugh offered a limpid acknowledgement of his error, but fell short of apologizing for it. “I was very emotional last Thursday, more so than I have ever been,” he wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad.”
No one can begrudge Kavanaugh for any anger over threats to his wife and children. Basic fairness also requires that he have the opportunity to defend himself from public accusations. But Kavanaugh was not testifying as a son or husband or dad. He was a sitting federal judge seeking elevation to a lifetime position on the nation’s highest court. And in that capacity, Kavanaugh seemed to confirm Democrats’ worst fears: that he was still the Republican political operative who worked as a hatchet-man for Ken Starr in the Clinton years and a foot soldier in the George W. Bush White House.
To make matters worse, Kavanaugh’s partisan performance appears to have been influenced by the White House itself. In the days ahead of his appearance before the committee, Kavanaugh gave an interview with Fox News Channel in which he appeared wooden and repetitive in his defenses. Kavanaugh then met with White House counsel Don McGahn, who urged the judge to, as the Wall Street Journal put it, “show his emotions and true feelings about accusations” when he appeared before the committee. Everything about Kavanaugh’s public responses, from defending himself through conservative media outlets to heeding the White House’s advice ahead of a partisan rant, suggests that the judge tried to appeal to a narrow slice of the country to join a court that affects all of it.
The strategy worked, and its damage to the Supreme Court’s legitimacy is immense. Under Chief Justice John Roberts, the court’s conservatives had already made great strides in structurally tilting the American democratic system in the Republican Party’s favor. Roberts and his colleagues have weakened public-sector unions, watered down campaign-finance laws, gutted the Voting Rights Act of 1965, and refused to rein in extreme partisan gerrymandering. With Kavanaugh on the court, conservative legal activists will now go where Kennedy would not let them. The next few years will see aggressive campaigns to roll back abortion rights and affirmative-action policies in higher education, to widen religious exemptions to the few civil-rights laws that protect gay and lesbian Americans, and to hamstring the federal government’s power to regulate the national economy.
Roberts, the court’s new median (not swing) justice, may block some of the most extreme post-Kavanaugh campaigns, but he likely will side with most of them. The result will be profound and unpopular changes in American life, all wrought by a Supreme Court majority built through minority rule. If Democrats retake the White House and Congress, they could rescind any of Trump’s executive orders and rewrite all legislation passed by Republicans. But they won’t have the same power over the justices. Faced with what will likely be a hostile Supreme Court for the next generation, liberals and the American left will have two options: play by the rules set by a judicial body they view as illegitimate, or resort to unprecedented measures to change it. Whatever path they choose, this country will never be the same.