October 11, 2018

Kavanaugh’s Partisan Outburst Will Indelibly Mar His Tenure

Photo by Mandel Ngam/AFP/Getty

When he’s the fifth vote to strike down voting protections or allow more big money in politics, will Americans accept it?

By Michael Waldman, J.D. / 10.08.2018
Brennan Center for Justice

Brett Kavanaugh’s Fox News-style eruption before the Senate Judiciary Committee will indelibly mar his tenure. “The left.” “Pent up anger about President Trump.” “Revenge on behalf of the Clintons.” “What goes around, comes around.” All of it was unprecedented, appalling, deeply improper for a judge. His semi-apology didn’t help much. The problem was not only “tone,” as he put it, but content.

Many issues before the court are political at their core. Voting rights cases, the Census, redistricting challenges, campaign finance law — all have political ramifications. When Kavanaugh is the fifth vote to strike down voting laws or allow unbridled big money in politics, will the public simply accept that as umpires calling balls and strikes?

The circumstances of his confirmation, too — the unpardonable treatment of Christine Blasey Ford, the sham investigation, Donald Trump’s misogyny — will make any rulings on Roe v. Wade and other issues of women’s rights and bodily autonomy even more painful.

We are now hours into a new era in American constitutional history. A hard-right majority controls the Supreme Court for the first time since the early 1930s. That’s happened before, from Dred Scott to the Lochner era (where judges routinely blocked social legislation) to the early New Deal. Those periods were marked by an epic conflict between the court and the country. We must hope we are not there again.

To quote Brett Kavanaugh: “For decades to come I fear the country will reap the whirlwind.”

Originally published by the Brennan Center for Justice under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.