He will have no problem hearing any case he wants. Kavanaugh—who lashed out at “left-wing opposition groups” in his opening statement—may be asked to recuse himself in matters involving liberal legal groups, sexual assault, or President Trump. But he will be free to do as he wishes. Recusal is up to the justices, and they rarely recuse. The late Justice Antonin Scalia famously refused to recuse himself in a case involving his friend Vice President Dick Cheney after they had just gone duck hunting together.
Outside the Court, though, things will be rougher. If Democrats win the House—and polls give them about a 75 percent chance—Representative Jerrold Nadler, a New York Democrat who is in line to be Judiciary Committee chairman, has promised an investigation. Kavanaugh would face far tougher grilling than at his Republican-controlled confirmation hearing. There could also be a long list of hostile witnesses. Cue the media circus. There is a real chance the House could impeach, though it is unlikely that two-thirds of the Senate would vote to convict.
Kavanaugh may also have difficulty moving through the larger world. He said himself that he may no longer be able to coach girls’ basketball, and it is hard to imagine him visiting elite law schools anytime soon without facing massive protests. He could find it hard to keep his position in Washington society if angry members of the public criticize him everywhere he goes.
Read Tom Nichols on why he’s leaving the Republican party
There are predictions that Kavanaugh will become the next Thomas, who has been dubbed “the angriest justice.” Thomas has staked out a position on the Court’s far right, and he has remained fiercely loyal to the conservative groups that stood by him. He clearly seems to harbor rage toward his confirmation-time antagonists—in his memoir, he compared the “left-wing zealots” he encountered in Washington unfavorably with the Ku Klux Klan.
If Kavanaugh follows a similar path, he will become an embittered partisan, joining the Court’s right-wing fringe, defiantly rejecting motions to recuse, running into the warm embrace of the conservative Federalist Society—and writing a vitriolic memoir. This could not possibly be an appealing prospect for him on a personal level, and it would be a significant blow to the Court’s standing if two of its nine members were wounded, grudge-settling ideologues.
There is, however, another option. Kavanaugh cannot undo the past, but he can recognize the damage his presence poses to a vital institution. And he can dedicate himself to minimizing it. His guiding light should not be Thomas, but his pre-confirmation vow in his Wall Street Journal op-ed to be “even-keeled, open-minded, independent and dedicated to the Constitution and the public good.”
He could start with recusals. It undermines confidence in the Court when justices rule in cases where there is an appearance of bias, and that will particularly be true of Justice Kavanaugh, who not only delivered a partisan tirade to the Senate but also ominously declared that “what goes around comes around.” He could lead his fellow justices to recuse more often, and to explain why they are doing so.