Commentary

The Kavanaugh nomination should have never even gotten to this point

At this writing, the nation is transfixed by the spectacle of a group of conservative old men and their last-minute hired help acting like prosecutors toward a brave woman who has literally put her life on the line in order to try and see that justice is done in the Supreme Court nomination of Brett Kavanaugh.

It should never have had to come to this. The simple fact is that Kavanaugh should never have gotten this close to the Court because, as Ian Millhiser of Think Progress put it so succinctly this morning, Brett Kavanaugh is “an existential threat” to the institution:

Here is what the future will almost certainly look like if Judge Brett Kavanaugh becomes Justice Brett Kavanaugh.

Some time very soon, possibly in the next several months, six men and three women will meet in a room within the Supreme Court building, and five of the men will vote to eliminate the constitutional right to an abortion. While there is some uncertainty about whether the Court will overrule Roe v. Wade outright, or hand down a more dishonest decision that allows states to ban abortion in underhanded ways, there is no reasonable uncertainty about how Kavanaugh will vote on abortion.

The five votes to end the right to an abortion will include Justice Clarence Thomas, who almost certainly sexually harassed Anita Hill, and Brett Kavanaugh, who now faces multiple allegations of sexual assault and similar behavior.

Mull this potential future over as you also ponder Alexander Hamilton’s words from The Federalist #78. “The judiciary,” Hamilton wrote, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Courts “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

The Supreme Court does not enforce its own opinions. The entire judiciary largely depends on voluntary compliance from losing litigants. It is an institution built entirely on trust. Even when we disagree with their decisions, Americans generally obey the courts.

Which is why civil rights lawyer Sasha Samberg-Champion is asking exactly the right question about Kavanaugh’s confirmation process.

“A reminder that, as compelling as much of the evidence is, the Senate’s constitutional role is not to adjudicate whether Judge Kavanaugh committed any particular offense. Nor is it well suited to do that, as should be obvious by now….The real question should be whether confirming this nominee under these circumstances permits the Court to play the institutional role that it is assigned — to adjudicate major controversies and have its decisions respected, even if grudgingly.”

The Supreme Court will not just weigh the future of reproductive freedom, an issue that obviously has a huge disproportionate impact on women. In recent years it sabotaged the rights of women who are sexually harassed by their bosses, and tried to strip many women of their ability to sue for equal pay for equal work. This coming Tuesday, it will hear a major case involving sex offenders.

Ask yourself if you trust Brett Kavanaugh to be an impartial judge in any of these cases, given the credible allegations he now faces.

If the American people lose faith in the judiciary, Congress and the president have an array of tools they can use to bring the courts to heel. They can pack the Court — adding additional justices to its ranks in order to neutralize Kavanaugh’s vote. They can potentially strip the courts of jurisdiction over certain cases. They can wipe out the Supreme Court’s budget, strip its judges of their staff and their law clerks, and reassign the Supreme Court building to the Department of Labor’s Women’s Bureau.

And that’s if you don’t count the extra-legal steps federal and state officials could take to undermine a judiciary that’s lost the trust of the nation. The Attorney General could order the U.S. Marshals Service to stop enforcing Supreme Court decisions, or to only enforce certain decisions. States could revive the discredited doctrine of “interposition,” which claims that a state may place its own authority between a court decision and its citizens.

If any of these tactics play out, it will be a terrible tragedy. Congress can enact a web of civil rights laws, worker protection laws, environmental regulations and similar basic safeguards, but our system depends on the judiciary to apply those cases to individual cases. If the people lose faith in the judiciary, our entire system of government is on the line.

Perhaps Senate Republicans don’t care about this danger. Perhaps they care so much about capturing the Supreme Court by any means necessary that they will risk it all to confirm Brett Kavanaugh.

But the truth is that they don’t have to. There is no shortage of qualified conservative judges who could serve on the Supreme Court. Most of them face no credible allegations of sexual assault.

It is still September. The second-place candidate in the 2016 election still occupies the White House. Republicans still control the Senate. Even in the best case scenario for Democrats, Republicans have until early January to confirm a different nominee. The GOP does not have to risk a thing to confirm the fifth vote to eliminate Roe v. Wade.

Or they can move forward with Kavanaugh, and win what could be one of the most profound Pyrrhic victories in American history. They could win control of the Supreme Court, only to destroy that institution in the process.

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