The confirmation of Brett Kavanaugh concludes a month of partisan rancour in the United States arguably not seen since the 2016 election. At stake at the ‘job interview’ of the century were not only the careers and reputations of Christine Blasey Ford and Kavanaugh, but long-term trends in American politics and society including the centralising of power in the judiciary and the polarisation of the Congress and electorate.
A piece of context for why both sides of the political aisle seem willing to debase norms and decency in order to fill this seat or keep it empty. In late June 2018, Justice Anthony Kennedy retired from the Supreme Court. Though nominated by Ronald Reagan, and considered to be a conservative, Kennedy formed his own jurisprudence on the bench, coming down on the ‘liberal’ side in many crucial decisions such as Planned Parenthood v. Casey (1992), which reaffirmed abortion rights, and Obergefell v. Hodges (2015), which affirmed that same-sex marriage was a constitutional right in all fifty states. However he still occasionally came down on the ‘conservative’ side in cases related to campaign finance (Citizens United vs FEC 2010) and gun control (Heller vs District of Columbia 2008). Kennedy’s resignation in June, then, did not just create any vacancy in the way that a conservative such as Clarence Thomas resigning would. It created an opportunity for Donald Trump to decisively shift the balance of the court to the right for a generation to come.
Supreme Court decisions are privileged by precedent and are thus rarely overturned for partisan reasons.
Two symbiotic developments- the centralisation of power in the judiciary and political polarisation of the American electorate, made this battle over control of the Supreme Court important. When the constitution was being debated in 1788, Alexander Hamilton, of musical fame, considered the judiciary to be the ‘least dangerous branch’. One decision made in the 1790s was overturned by the passage of the eleventh amendment, and appointments to it were not considered important, John Jay retiring as Chief Justice in 1795 in order to be Governor of New York. Only after Marbury vs Madison (1803) did the Court claim for itself the power of ‘judicial review’ and thus act as quasi-legislators over affairs of state, with no democratic accountability and lifetime appointments. This trend towards the judiciary becoming the most powerful branch of government was only accentuated since World War Two when Congress increasingly became the ‘broken branch’ and the Supreme Court filled this vacuum of authority by legislating on issues Congress would not, such as school segregation (Brown vs Board of Education 1954), Abortion (Roe vs Wade, 1973) and Same-Sex marriage (Obergefell vs Hodges, 2015). Unlike the executive orders of a president or the legislation passed by Congress, which are vulnerable to repeal when the opposition takes control of these branches, Supreme Court decisions are privileged by precedent and are thus rarely overturned for partisan reasons. This means the impact of Supreme Court decisions such as Roe vs Wade are much more long-term than congressional legislation or executive orders. The merits and demerits of having policy decided by nine unelected judges will not be discussed here, but it is an indisputable fact that such a power concentration has happened, and it is important to bear in mind when considering the drama recently concluded in Washington.
What is lost from this drama is any sense of the Supreme Court being an important body that parties might cooperate to fill positions on. A variety of statistics can be used to illustrate how tribal American politics has become- one is that 27% of Democrats and 36% of Republicans see the other party as a threat to the nation’s well being. Such individuals are likely to vote in party primaries and are unlikely to look favourably on a compromise over something as important as the Supreme Court. This has resulted in votes for Supreme Court nominees becoming increasingly, though never totally, partisan and the unanimous votes confirming justices Anthony Kennedy and Antonin Scalia are feats likely never to be repeated.
If the battle to fill the seat or keep it empty is warfare, then timing is crucial.
If the battle to fill the seat, or keep it empty, is warfare then timing is crucial. The Democrats wanted to keep the seat empty until at least January 2019 when they expect to take control of the Senate. Some even raised the possibility of keeping it empty until after the 2020 Presidential election which Donald Trump is expected to lose. The Republicans, fearing big defeats in both elections, wanted to confirm Kavanaugh while they still control the presidency and both houses of Congress. These timing incentives were known to be at play before September 12th, but, despite protests, Kavanaugh’s hearing was thought to be complete on September 10th. While the outcome of the vote was uncertain, with liberal Republicans and conservative Democrats still undecided, the fact that a vote was probably going to be held before January was taken for granted on September 12th, the day Kavanaugh was accused of sexual assault by Ford.
Like Anita Hill in 1991, Ford has only come forward as an accuser at the eleventh hour.
Like Anita Hill in 1991, Ford has only come forward as an accuser at the eleventh hour. Like Clarence Thomas in 1990, Kavanaugh has been forced to testify in the face of allegations which would trouble any innocent man. Both Ford and Hill wore blue at their testimony. Both allegations took place in 1982. However here the trivial comparisons end. The process of political polarisation and judicial centralisation, though well underway by 1991, have simply become too extreme for the hearings to be framed in a similar political context. Whereas in 1991, eleven Democratic Senators crossed the aisle and elevated one of the most extreme conservatives in Supreme Court history to the bench, in 2018 only Joe Manchin of West Virginia voted to confirm the much more moderate Kavanaugh. Anita Hill’s allegations against Clarence Thomas were investigated by the FBI, but that agency in the Trump era is so deprived of bipartisan standing that it should not be surprising their week-long investigation has not been considered a sham by Democrats. Race is also a factor prevalent in the Thomas hearings but less so in the Kavanaugh hearings. Thomas called his hearings a ‘high tech lynching’, comparing his plight to a long history of Jim Crow justice that as a Southerner he would be familiar with. By playing on such imagery, Thomas managed to convince 63% of a normally liberal black electorate to support him. Additionally, the development of the #MeToo movement since 2017 has had a tangible influence on US politics through the ongoing Stormy Daniels scandal with President Trump, the resignation of Al-Franken and the defeat of Roy Moore in Alabama. It seems more realistic in 2018, than in any other year, that a party in power can nonetheless be halted in their drive to dominate judicial appointments by credible accusations of sexual assault.
However, it is clear that Americans have not reached an era in which female allegations of sexual assault against powerful political figures are believed. How credible Dr Ford’s allegations are, will not be discussed here. It is clear that they are not viewed as credible enough for 50 Senators, including one Democrat and several females, to merit further delay. What is worth noting is that the most partisan vote on a Supreme Court justice in US History is thus a result of a politicised judiciary that will rule over substantial amounts of policy that elected representatives have abdicated on. Only time will tell how these developments will continue under the Kavanaugh court.