Judge Brett Kavanaugh’s frantic commentary in ‘The Wall Street Journal’ insisting he is a fair, impartial judge – and we should disregard his partisan, unhinged diatribe and non-judicial demeanour during last week’s Senate testimony – serves as some recognition the partisan wars in which he has taken up arms now threaten the legitimacy of the Supreme Court.
Other than denying a seat to an overt partisan such as Kavanaugh, what can be done to recapture at least the illusion that the high court is something more than another blue-v-red battlefield?
It helps to understand how we got here – the point at which a Supreme Court nominee doesn’t bother to conceal his animosity toward an entire political party. Senators, who confirm judges, were not even directly elected until the 17th Amendment.
The expansion of judicial power in the 20th century was a mixed blessing to be sure, serving as both a last line of defence for individual rights against a growing administrative state and an imperfect, sometimes counterproductive tool for easing deep social conflicts. (As an aside, an unelected judiciary with vastly expanded power used to be the right’s nemesis; now it is a political prize.)
The nature of the justices and the institution itself changed when our parties become more overtly ideological, with fewer centrists.
Still, matters were not dire for the court due to a very undemocratic instrument – the filibuster. That required some small degree of consensus for judicial confirmation and bestowed greater legitimacy on the courts. A justice acceptable to at least a small number of the opposition couldn’t be a gladiator for one side or the other.
Republican Senator Mitch McConnell decided that he’d had enough of that. He envisioned the Supreme Court as simply another arena for bare-knuckle brawls.
He denied a mainstream liberal judge, Merrick Garland, so much as a hearing. He did away with the filibuster.
Columnist Ron Klain, speaking to the ‘New Yorker’, put it brilliantly: “If [Republicans] can, they will.”
Republicans saw no need to release all of Kavanaugh’s records. What could Democrats do other than holler?
They saw no need to take Christine Blasey Ford’s allegations seriously. So what if Democrats squawked?
With impunity they could order an FBI inquiry designed to hopscotch around problems for Kavanaugh.
Democrats didn’t have the votes to block him, and Republican moderates could be counted on to crumble.
Hence we got a Supreme Court nominee pleading his case on Fox News and an ‘Wall Street Journal’ op-ed.
The fix for the Supreme Court is the same as the fix for US politics – levelling a right-wing populist party that abhors democratic norms and building a centre-left to centre-right coalition.
In the near-term, the goal would be to depoliticise the Supreme Court, reducing the partisanship that accompanies a lifetime appointment.
A term limit of 12 to 15 years for justices and a 60-vote threshold seem increasingly attractive. A constitutional amendment would be needed for the former and probably for the latter (unless both sides finally agree losing the filibuster has been a disaster).
That’s no easy task considering that an amendment must be proposed by either a two-thirds vote by both houses of Congress, or a call by two-thirds of the state legislatures for a constitutional convention (a prospect so alarming given the extremism and anti- democratic passions of the day that it should be avoided at all costs).
However, given the right’s former antipathy toward a powerful executive and the left’s recent experience in a hyper-politicised nomination process, it might be doable. (©2018, The Washington Post)