California Forum

With Kavanaugh confirmation battle, the Supreme Court’s legitimacy is in question

People line up at the U.S. Supreme Court on Monday, the first day of its new term. Amid the political chaos of Judge Brett Kavanaugh’s nomination, the high court’s work begins with only eight justices on the bench, four conservatives and four liberals.
People line up at the U.S. Supreme Court on Monday, the first day of its new term. Amid the political chaos of Judge Brett Kavanaugh’s nomination, the high court’s work begins with only eight justices on the bench, four conservatives and four liberals. AP

The bitter fight over the confirmation of Brett Kavanaugh surely will tarnish the legitimacy of the U.S. Supreme Court.

Justices are nominated and opposed because of their ideology, and ultimately their ideology will determine how they vote on crucial issues, such as abortion, affirmative action, gun rights and rights for gays and lesbians.

But there is something different about this confirmation battle — and the ones of the last few years — and it makes me worry about the toll it will take on the Supreme Court.

Opinion

In his angry statement to the Senate Judiciary Committee, Kavanaugh described the inquiry into his alleged sexual assault as a partisan smear campaign. He declared: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

This was echoed by Republican senators including Lindsey Graham. Kavanaugh also communicated this by being openly contemptuous of the Democratic senators, refusing to answer their questions and often treating them rudely.

Yet, it is hard to understand Kavanaugh’s claim. No one — not Kavanaugh or any senator — has provided the slightest basis for believing that Christine Blasey Ford had partisan motivations for coming forward. Nor could the Senate ignore her accusations.

Erwin Chemerinsky (2).JPG
Erwin Chemerinsky

If Kavanaugh is confirmed —the Senate was scheduled to take a final vote on Saturday — that means he will join Justice Clarence Thomas on the court under a cloud of alleged sexual misconduct and under a belief that there was a liberal conspiracy to block his ascension. And these are the individuals who are going to decide whether women continue to have a right to legal abortions and how courts should deal with sex discrimination claims.

But the cloud over the court’s legitimacy is larger than that. With a Justice Kavanaugh, a majority of the justices will have been appointed by Republican presidents because Senate Republicans refused to even hold hearings on Merrick Garland. Justice Antonin Scalia died in February 2016, and President Barack Obama nominated Garland to replace him. Garland’s nomination was pending for 293 days, the longest period in U.S. history. No one questioned Garland’s impeccable qualifications, or even that he was a moderate.

Before 2016, 24 times in American history there had been a vacancy in the last year of a president’s term. The Senate confirmed the nominee 21 times and denied confirmation three times. But never before had senators refused to hold a hearing or a vote on a nominee because they hoped that their party would gain control of the presidency in the next election.

Rightly Democrats will always regard this as a stolen seat on the Supreme Court. If Garland had replaced Scalia, replacing Anthony Kennedy would not shift the ideological balance on the Supreme Court. Even then, Republicans were able to put Neil Gorsuch in Scalia’s seat only by changing longstanding Senate rules and abolishing the filibuster for nominations.

The irony is that it is Republicans who profess that justices are impartial umpires and at the same time engage in unprecedented power politics to be sure that there are justices who are sure to vote in a very conservative way on all major issues. While liberals and conservatives both want justices who will vote their way, but the country never has seen anything like what Republicans have done in recent years to gain control of the Supreme Court.

It is unclear how it will matter that the court will be perceived as an extension of the Republican party. Maybe it will lead to a crisis of legitimacy for the court as occurred in the mid-1930s. Perhaps at some point it will lead to open defiance of the court’s rulings. Maybe it will cause the Democrats to try and increase the size of the court if they win control of the presidency and Congress in the November 2020 elections.

The only thing that is certain is that conservatives will gain control of the court as they have long desired, but they likely have irreparably tarnished the institution in doing so.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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