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.