Kavanaugh and Partisanship on the Supreme Court

(The Bloomberg View) -- Now that President Donald Trump has named circuit court Judge Brett Kavanaugh as his choice for the U.S. Supreme Court, Congress will begin the predictable process of scrutinizing him.

That process is often disingenuous, sometimes ugly and rarely productive. Democrats are now scouring Kavanaugh’s biography for evidence of intolerable character flaws and his opinions for signs of ideological extremism. Republicans are preparing a glossy brochure of intellectual brilliance and personal beneficence.

Kavanaugh surely understands his role in the drama. He can be expected to deliver rehearsed answers to anticipated questions. He may sometimes be evasive, even inaccurate. The five conservative justices who just overturned a decades-old Supreme Court ruling on unions all pledged, at one point or another during their confirmation hearings, fealty to court precedent.

The court is increasingly perceived as one more partisan outfit in a town that’s lousy with them. In a recent string of 5-4 decisions, Republican appointees all voted with the majority and Democratic appointees with the minority. Republicans are hoping that Kavanaugh will prove to be a more reliable partisan than Anthony Kennedy, the justice he is slated to replace.

Beyond devoting Kavanaugh’s confirmation hearings to learning how many ways he can avoid opining on abortion rights and Roe v. Wade, the members of the Senate Judiciary Committee should focus on the precarious state of the court itself. How does Kavanaugh propose to preserve the court’s integrity when so many of its decisions are issued as red team versus blue team? How would he help construct a bridge across the court’s expanding partisan chasm? How can the court’s decisions be better crafted to reflect American society as a whole instead of sharpened into weapons of one political party or one side of a culture war?

It’s a lamentable sign of our times that these questions need to be asked. But in recent years, the court has shaped American democracy with dubious actions on campaign spending, voting rights, gerrymandering and other issues. In the near future, the court may need to settle presidential challenges to the work of the special counsel investigating Trump ties to Russia, revisit abortion rights and address further erosions to the franchise.

Kavanaugh is an experienced, competent and well-qualified judge. (His views on executive power and whether a sitting president can be deposed and prosecuted seem especially pertinent.) Barring a shocking disclosure or misstep, he is very likely to take a seat on the court. If he falters, a conservative legal movement that has spent years building Supreme Court supply chain will promptly deliver a workable replacement.

Rather than fixate on an individual judge, senators should home in on the hazards of an increasingly polarized judiciary setting the rules for an increasingly polarized society. The Supreme Court is too vital to American democracy to sidestep responsibility. The tough questions Kavanaugh needs to answer concern what he can do to help defuse a mounting crisis.  

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