There are certain things you just don’t do as a nominee to this nation’s highest court. The boundaries have, up to this point, been unspoken. You do not reveal how you will rule in a certain case. You do not display overt partisanship. And you most certainly do not threaten revenge on the political party that lawfully questioned your fitness for the job.
Perhaps the most chilling line in Kavanaugh’s speech was, “what goes around, comes around.” He did not say it with any evident sadness, nor did he renounce it as a value. Here was a man apparently threatening revenge on his political enemies, and asking for a lifetime appointment with supreme power of judicial review with which to do it.
Brett Kavanaugh did a good job adhering to the first principle. He did not acknowledge he would certainly vote to overrule Roe v. Wade, nor did he slip up and reveal his conveniently timed “conversion” to a radical and unprecedented notion of absolute Executive Power. Much like now-Justice Samuel Alito did not overtly admit to his hostility towards labor unions, much like now-Chief Justice Roberts did not acknowledge his own hostility towards reproductive rights, Judge Kavanaugh comfortably negotiated the familiar terrain of dissembling in the name of judicial “propriety.” It’s deceitful, but it is a deceit we have come to accept, because we generally understand that maintaining at least the appearance of unbiased impartiality in our Court system is necessary, to preserve it in the eyes of Americans as one of our most important institutions.
Then something went disastrously wrong with the game plan. His nomination facing a mortal threat from a woman who, among others, accused him of committing sexual assault, Kavanaugh let loose with the most vile partisan screed ever spoken during a confirmation process, one that undermined any pretense that he deserved the honor of elevation to the United States Supreme Court.
“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 said.
Kavanaugh then proceeded to issue a threat towards Democrats, and by extension, towards half the population of this country that votes Democratic, as to what he would do to them—if he managed to get onto the Court:
“What goes around comes around. I am an optimistic guy. I always try to be on the sunrise side of the mountain, to be optimistic about the day that is coming,” Kavanaugh said during his opening statement. “But today I have to say that I fear for the future.”
That is, in its stark malevolence, as blunt a threat as Charles Manson could have uttered. Even Clarence Thomas’ declaration (fed to him by Republican Senators during his own confirmation) that he was being subjected to a “high-tech lynching” did not go nearly this far. With Kavanaugh, we have now allowed the paranoid fantasies of the right to invade the pinnacle of our judiciary. We have opened the door to putting judicial robes on Alex Jones.
He dispensed with any pretense of law as a neutral value. Everything was reduced to power and motive. He invoked his own work to impeach Bill Clinton (on a sprawling investigation that began as a probe of an old land deal), and managed not to find any case for self-reflection in this episode at all. Instead he mentioned it to show that Democrats were vile liars bent on destroying their prey. And the notion that Democrats have hatched secret plots to undermine the legitimate government as revenge for the Clintons — a central theme of Trump’s rhetoric — formed the spine of Kavanaugh’s case.
Kavanaugh, who cut his teeth on preparing the impeachment questioning of Bill Clinton, provided no evidence for his accusations, but they played splendidly with the Occupant in the Oval Office, who along with right wing commentators heaped praise on their nominee’s partisan spew.
The reverberations of that nasty speech, should Kavanaugh manage to worm his way onto the Court, will serve to de-legitimize the Court as an objective institution, likely permanently. While most people who closely observe politics are already well aware of the Court’s ideological divide (particularly after the Bush v. Gore decision in 2000), many Americans are not particularly attuned to it. From this point forward, assuming he is installed by Republicans on the Court, in addition to being known as the Court’s only accused rapist, Kavanaugh will also forever be associated with vitriolic anger towards the Democratic Party. As a member of the new conservative majority, he will have transformed the Court, in Americans’ eyes, into a political arm of the Republican Party, with a stated mission to wield violence by way of its court rulings against liberals, Democrats, and the interests they represent. Judith Resnick, professor of law at the same Yale University that Kavanaugh graduated from, put it bluntly:
Judge Kavanaugh’s confirmation in the wake of his performance, she added, could leave the Supreme Court “under a cloud of politics and scandal from which it would not recover for decades.”
As Supreme Court Justice Elena Kagan explained in her remarks delivered at UCLA on Thursday (the same day as Kavanaugh’s outburst), if the American people view the Supreme Court as simply a cauldron of partisan hacks, the Court itself loses its legitimacy as a fair arbiter of justice and the law.
“The court’s strength as an institution of American governance depends on people … believing that it is not simply an extension of politics, that its decision-making has a kind of integrity to it,” Kagan said. “And if people don’t believe that they have no reason to accept what the court does.”
Many Court watchers believe that the avoidance of appearing politically biased is what prompted Chief Justice John Roberts to uphold the constitutionality of the Affordable Care Act, a piece of legislation he doubtlessly opposed ideologically.
There is no question that Brett Kavanaugh, a Federal Circuit Court Judge, ought to have realized this. But his hunger for self-advancement and his own ideological fanaticism prevailed instead. Kavanaugh clearly demonstrated in his remarks that he does not care about the Court’s legitimacy in the eyes of the American public. All he cares about is fulfilling his own agenda—now made explicit—to take revenge upon liberals in any way he can twist the law to do so.
By his actions, Kavanaugh has shown a hundred million or so Americans that if he reaches the Supreme Court, he will act not in accordance with the law, but with politically biased motives. In doing so he will have permanently tarred the Court with the stigma of illegitimacy.
This is a Creative Commons article. The original version of this article appeared here.