Midterm Time Capsule, 31 Days to Go: Kavanaugh Will Change the Court

Susan Collins, Republican Senator of Maine, who cast what was seen as the swing vote in Brett Kavanaugh's favor. (Mary Calvert / Reuters)

About the author: James Fallows is a contributing writer at The Atlantic, and author of the newsletter Breaking the News. He was chief White House speechwriter for President Jimmy Carter, and is a co-founder, with his wife, Deborah Fallows, of the Our Towns Civic Foundation.

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Brett Kavanaugh’s impending arrival on the Supreme Court is like Donald Trump’s attainment of the presidency, in this important way:

By the rules of politics that prevailed until 2016, neither of them would have come close to consideration for their respective offices. For Trump, the reasons are obvious; for Kavanaugh, they’re brilliantly summarized by one of Kavanaugh’s long-term friends here, and discussed below.

Thus the ascent of a man like Kavanaugh necessarily changes the public sense of what is within bounds, and not, for the most powerful jurists in the nation—just as the ascent of Trump has changed assessments of what is within bounds for a president, and how much protection long-standing norms can supply.

More specifically, both Trump and Kavanaugh have shifted the implicit privilege-and-responsibility bargain that had previously applied to their offices:

- Presidents, in exchange for their great power, were expected both to act, and to speak, for the interests of the entire nation — including the substantial segment that did not vote for them. (Surprising but true: Every single U.S. president except Lyndon Johnson has taken office knowing that at least 40 percent of the electorate voted for someone else. In 1964 Johnson got the highest-ever proportion of the popular vote, at 61.1 percent—but he knew that nearly 40 percent had voted the other way, for Barry Goldwater.)

Trump, with his rhetoric and policies designed continually to fire up his base rather than appeal to his more numerous critics, has obviously viewed his role differently.

- For judges in general, and Supreme Court justices in particular, a version of the same bargain has applied: In exchange for outsize, unaccountable, lifetime power, justices will at least act as if they are above personal grievances and partisan loyalties. Kavanaugh has rejected that part of the implicit bargain: with his bitter outbursts in response to testimony by Christine Blasey Ford, with his partisan appeals during the nomination process on Fox News and in a Wall Street Journal op-ed, with his comment in his written testimony that in today’s politics “what goes around, comes around.” He has, crucially, never promised to recuse himself in cases involving the executive powers, the possible offenses, or the pending investigations of the man who has elevated him, Donald Trump.

Certain roles invest the people who hold them with enormous  power over others. This happens with surgeons, airline pilots, police officers, combat commanders, judges. For that power to seem legitimate, the person occupying the role is supposed to comport him- or herself as if the role itself is uppermost in mind, not individual interests or whims. A combat commander who thinks, I’ve got to save my skin rather than How do I save my unit? will have no followers (and in the Vietnam era would have been fragged).

Kavanaugh has broken the part of the bargain in which we expect justices at least to act as if they are impartial, despite the biases every single one of them naturally brings. A justice who says of partisan politics, “What goes around, comes around” will arouse suspicion for every close call he makes.

One U.S. Senate, in its currently polarized and paralyzed configuration, is bad enough. The choice and confirmation of Kavanaugh is a step toward replicating the flaws of one branch of government in another. The Court becomes a version of the Senate, across the street from the original model but with lifetime seats.

A rhetorical success of the pro-Kavanaugh side was to convert the debate about his suitability for this role into a “proof beyond reasonable doubt” criminal-trial standard concerning allegations of sexual misconduct.

Proof beyond reasonable doubt is the right standard for depriving someone of liberty. Bill Cosby’s jury was satisfied on those grounds, and O. J. Simpson’s was not. But that has never been the standard for choosing a university president, or a CEO, or a four-star general, or a future marriage partner, or a Nobel Prize winner, or a lifetime federal judge. With all their differences, the standard for these decisions is supposed to be: Is this the best person for the role?

I previously argued that, entirely apart from the allegations of sexual  misbehavior, Kavanaugh had proved himself the wrong person, in three ways:

  • His explosive, angry, non-judicious temperament;
  • His openly embraced partisan outlook;
  • His record of demonstrable equivocations, evasions, and outright lies under oath. (Again, beyond discussions of Deborah Ramirez or Christine Blasey Ford.)

That I, personally, think this doesn’t matter. But it is significant that:

  • 2,400 law professors do;
  • As does a former dean of Kavanaugh’s oft-mentioned alma mater, the Yale Law School (“For as long as Kavanaugh sits on the court, he will remain a symbol of partisan anger, a haunting reminder that behind the smiling face of judicial benevolence lies the force of an urgent will to power”);
  • As does a former Republican-appointed Supreme Court justice, John Paul Stevens;
  • As does The Washington Post’s editorial page, which had supported every Supreme Court nominee since Robert Bork, including Clarence Thomas;
  • As does Ben Wittes, a close friend of Kavanaugh’s, who had supported him before the hearings;
  • As, implicitly, does Kavanaugh’s champion, current White House counsel Don McGahn, who according to The New York Times said that an extended investigation of Kavanaugh could be “potentially disastrous” for Kavanaugh’s confirmation.
  • And as do many people who have known him through his life.

A sample from the Post’s editorial:

Finally, Mr. Kavanaugh raised questions about his candor that, while each on its own is not disqualifying, are worrying in the context of his demand that Ms. Ford and his other accusers be dismissed and disbelieved. These include his role in the nomination of controversial judge Charles Pickering while working for Mr. Bush, his knowledge of the origin of materials stolen from Democratic Senate staff between 2001 and 2003, and his lawyerly obfuscations about his high school and college years….

And what of Mr. Kavanaugh’s political philosophy?… We would not have opposed Mr. Kavanaugh on that basis, just as we did not think GOP senators should have voted against Sonia Sotomayor because they did not like her views. Rather, the reason not to vote for Mr. Kavanaugh is that senators have not been given sufficient information to consider him — and that he has given them ample evidence to believe he is unsuited for the job. The country deserves better.

And from the Politico essay by Robert Post, former dean of Yale Law School:

Each and every Republican who votes for Kavanaugh, therefore, effectively announces that they care more about controlling the Supreme Court than they do about the legitimacy of the court itself. There will be hell to pay ...

Judge Kavanaugh cannot have it both ways. He cannot gain confirmation by unleashing partisan fury while simultaneously claiming that he possesses a judicial and impartial temperament.

But now he will take his seat, much as Trump assumed his powers. Matthew Yglesias has argued that this change will be good in hastening a demythicized view of the Court as just another version of the Senate, a thoroughly partisan and politicized body. And Clarence Thomas, at least, may have the comfort of no longer being the person who reached the court by the narrowest confirmation-vote margin (52 to 48 for Thomas), and no longer having the greatest personal cloud hanging over him. Who knows how the other pluses and minuses will net out.

But Trump has changed our view of who could end up in his office, and what the restrictions are. So will Kavanaugh, about the Supreme Court.

Thirty-one days to go.