Kavanaugh’s Victory Is a Loss for America
(The Bloomberg View) -- President Trump has secured Brett Kavanaugh’s confirmation to the U.S. Supreme Court. Senate majority leader Mitch McConnell has kept his promise to “plow right through” all obstacles. Against the odds, or so it seemed in recent days, they got their way. The country will bear the costs of their victory for many years, and the toll could be grave.
The worst damage doesn’t arise from Kavanaugh’s unfitness for the position — though his response to the Senate confirmation process, regardless of whether the charges against him are true or false, did indeed show that he was unfit.
The greater harm comes from an enormous stride toward a radically politicized Supreme Court, and from a serious new challenge to its legitimacy. These are what the country just witnessed and will be unable to forget. Kavanaugh’s confirmation has compromised the ability of the court to do the job the Constitution demands of it.
In recent years, to be sure, the court had already come to be seen as a political body — dividing again and again on predictable partisan lines. This had already undermined the constitutional order, because for this unelected and largely unaccountable panel to command public confidence and discharge its proper role, it should stand, and be seen to stand, above party politics.
The court needed a new member, and a confirmation process, that would help to restore its reputation as a politically impartial body. There was admittedly little prospect of that: Trump and the Republican-controlled Senate were always likely to choose a reliable conservative. But Kavanaugh’s confirmation goes far beyond that. The country watched as the nominee, albeit under intense pressure, expressed ferocious partisan hostility to his political enemies. As retired Justice John Paul Stevens put it Thursday, Kavanaugh “demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”
Maybe, as passions cool, Kavanaugh will again be able to conduct himself with judicial propriety — and serve in the manner of the judge who attracted the praise of many peers, regardless of political affiliation, before the confirmation process began. But reasonable people will doubt whether this is possible. And if Democratic, liberal and feminist groups demand his recusal on cases destined to affect them, who could blame them?
Compounding the problem, as much as half of the country will regard this appointment as illegitimate. The charges against Kavanaugh weren’t convincingly denied or thoroughly investigated. Witnesses who sought to cooperate were turned away by the FBI or simply ignored. Kavanaugh and accuser Christine Blasey Ford weren’t interviewed at all — granting Kavanaugh’s wish to avoid further FBI scrutiny while refusing Ford’s to have her claims tested.
The matter won’t end here. Leads that the FBI chose or was told not to follow will now be pursued by others. Representative Jerold Nadler of New York, a potential House Judiciary Committee chairman, has said that a failure to vet the allegations in the Senate would prompt his committee, under a prospective Democratic majority, to open its own inquiry.
Not for the first time, the Republican Senate has failed to discharge its own duties under the Constitution. Republican Jeff Flake and Democrat Chris Coons tried, in good faith by every indication, to steer the Senate away from tribal warfare over Kavanaugh. They fell short.
A dysfunctional Senate and a reckless president got their win. But the process and their appointee are indelible expressions of bad faith and an incitement to yet new depths of partisan acrimony. One hopes that Kavanaugh will do all he can to demonstrate his bona fides and help repair the damage to the court and his own reputation. Even so, the toxins released by this debacle threaten to poison the court, and the country, for years to come.
Editorials are written by the Bloomberg View editorial board.
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