Senator Flake will vote yes, Senator Collins will vote yes, Senator Manchin will vote yes: the Republicans now have 51 votes and, barring catastrophe, Brett M. Kavanaugh will be confirmed as the next associate justice of the Supreme Court.
The confirmation process began normally enough — a qualified nominee, a smiling family, campaign emails from opposition party senators foreboding doom — and ended in death threats, thousands of arrests, and worst of all, the reentry of Michael Avenatti into the collective national consciousness.
This sort of escalation seems to be the hallmark of modern-day Washington, but apart from the other partisan spectacles of the past decade, this one offers a uniquely first-hand look at the degradation of one of the last non-partisan institutions in our republic. There will be no insidious, creeping cultural shift or the disaffection of a few key voting blocs in battleground states. This spectacle, unlike the others, affects every American right now, and for a long time after.
There are lots of legitimate concerns about a potential Justice Kavanaugh — women’s right to choose, justice for the chief executive, money in politics, etc — but there is a less partisan and far more important principle at stake in this nomination fight: the integrity of our judiciary.
That is not to say that Judge Kavanaugh lacks integrity. His decades of service, twelve of which were spent on the second highest court on the land, and the clean record they come with demonstrate his ability to operate at the highest levels of government without compromise or corruption. Personally, I find Dr. Ford’s allegation to be credible for a number of reasons (her testimony, the timing of her letter to Sen. Feinstein, the therapist’s notes), but the sheer lack of contemporaneous or corroborating evidence makes understandable some Senators’ unwillingness to hold the Judge Kavanaugh accountable. I don’t find concerns about his high school or college drinking concerning either, as I don’t believe that having fun precludes one from having moral character or the ability to function professionally later in life.
But the consequence of the bitter confirmation fight, a catastrophe for which Senators from both parties are equally responsible, is that Judge Kavanaugh has lost the appearance of integrity, whether fairly or not.
In an appearance at Princeton University on Friday, Associate Justice Elena Kagan articulated the need for a judiciary which retains both the practice and appearance of impartiality.
Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now. […] In other words, people thinking of the court as not politically divided in the same way, as not an extension of politics, but instead somehow above the fray, even if not always in every case.” - Associate Justice Kagan, The New York Times
What we are left with, after the mess of brazen self-serving posturing and governing malpractice that was the process of advice and consent on Judge Kavanaugh, is a man whose votes and judicial opinions will not be accepted as legitimate by more than half of the country. Those Americans either believe that this President has no right to nominate a justice at all, that Republicans are desperately working to cover up a history of sexual violence with sham proceedings, that Judge Kavanaugh perjured himself numerous times in his confirmation hearings, or that he demonstrates a partisan, angry temperament ill-suited for the Supreme Court. Each and every one of those charges could be entirely false and it would not matter, because too many of the American people now believe that Judge Kavanaugh is not worthy of the Court. That perception is just as disqualifying as the reality of whether or not the Judge has what it takes.
Is it fair to Judge Kavanaugh? Unless you believe the allegations against him — which is not irrational by any stretch — it’s not fair at all. And one can successfully argue that the Democrats’ disgraceful tactics of deceit and righteous fear-mongering combined with the Republicans’ unwillingness to hold a real investigation and seeming inability to consider credible accusations are almost entirely responsible for the demise of the Judge’s reputation. But regardless of how we got here, the reality is such.
The Court relies on the trust of the nation. It has no means to enforce its decisions, meaning that without popular confidence it could-well dissolve into an advising body heeded by Congress and the Executive only when convenient. The Court has not always been perfect, but not since the days of Andrew Jackson (not counting ex parte Merryman) has any executive or legislator fully ignored its rulings. Even Richard Nixon, on the precipice of disaster, released his oval office tapes in compliance with a Court ruling that would catalyze the end of his presidency.
The nation does not trust Judge Kavanaugh, and by extension, may not trust the rulings of the Court upon his confirmation. And if the nation does not trust the Court, there will be nobody to hold government accountable when it attempts to ignore its rulings. That possibility is unconscionable, and more than enough, separate and apart from any other reason, to end the confirmation proceedings of Judge Kavanaugh.