Gettysburg College Prof. Joseph Guelzo:
The nine long faces that stare back in photographs of the U.S. Supreme Court radiate a sobriety intended to convince us that it is a bastion of deliberation, reason and uprightness, walled off from the messy business of politics. Nothing has done more to turn that perception upside-down than the past two weeks of sound and fury over the nomination of Brett Kavanaugh.
Perhaps the perception itself has been part of the problem. From the beginning, the Supreme Court was much more of a political cockpit than the legend of jurisprudential neutrality suggests. John Marshall, the most significant chief justice in the court’s history, was appointed by President John Adams in the dying weeks of Adams’s administration specifically to discomfit the incoming president, Thomas Jefferson. Marshall did so by asserting the court’s power to review federal legislation and giving Jefferson’s nemesis, Aaron Burr, a free pass at his treason trial in 1807.
The courts were notoriously politicized in the fight over slavery. The Judiciary Acts of 1789 and 1837 both required that as new states were admitted to the Union, new federal judicial districts be created for them. If those new states were slave states, pro-slavery jurists from them became candidates for the Supreme Court. By the 1850s, the Supreme Court was composed of “five slaveholders and two or three doughfaces,” in the words of Horace Greeley.
Not much has changed in the last half-century of culture wars. The 1969 nominations of Clement Haynsworth and G. Harrold Carswell both foundered on civil-rights politics. Robert Bork went aground on both civil rights and Roe v. Wade—which was itself the product of considerable political jockeying among the justices on the court at that time. Anyone who imagines that the Supreme Court floats serenely above the political fray knows little of its history. The Kavanaugh fight was just another turn of the screw.
When President Trump nominated Judge Kavanaugh in July to fill Justice Anthony Kennedy’s seat, the consensus among the wise heads was that the president had played it safe. Judge Kavanaugh was a carefully vetted Kennedy protégé with a sterling reputation and a long history of inside-the-Beltway service. The liberal Yale Law School professor Akhil Amar wrote that the nomination was Mr. Trump’s “classiest move” yet.
What turned Judge Kavanaugh’s confirmation process into the biggest judicial firestorm in decades had little to do with Judge Kavanaugh and a lot to do with Democrats’s overconfidence that his nomination could be turned into a Republican Waterloo. Driven by the conviction that they were riding a big blue wave to the November shore, Democrats laid into Judge Kavanaugh in the hope that something about the nominee could be confected into a seismic rumble and turn the wave into a tsunami.
They did not find much. Although Judge Kavanaugh generated baskets upon baskets of documents during his years in the Bush White House, they contained little that set political pulses fluttering. Ditto for his decisions on the U.S. Court of Appeals for the District of Columbia Circuit, which were routinely very conservative but largely concerned out-of-the-spotlight issues such as environmental regulation and due process. Of the 14 Kavanaugh opinions later reviewed by the Supreme Court, 13 were upheld.
It was not until a sensational sexual-assault allegation lodged by Christine Blasey Ford was made public in mid-September that the Kavanaugh confirmation appeared to be in any danger, and even then, the charge had the uncomfortable appearance of a Democratic Hail Mary play. The case did not grow stronger over the 10 days that followed Ms. Ford’s first public statement. Purported participants or witnesses denied recollection of any assault or of even being present at the party Ms. Ford described.
In their testimonies last week, both Judge Kavanaugh and Ms. Ford had some pinholes pricked through their testimonies: he about his wild student life at Georgetown Prep and Yale, she about factual inconsistencies and potential political motivations. But by the end Sen. Dianne Feinstein and the Judiciary Committee Democrats were left without a meaningful case. Judge Kavanaugh might have gone on to a swift confirmation vote had it not been for the last-minute insistence of Sen. Jeff Flake on an additional FBI investigation into the Ford allegations.
I have undergone an FBI investigation. In my case, it was for a relatively harmless executive appointment. While it might sound like a forbidding exercise in mystery noir, the reality was nearly as humdrum as a mail delivery. Calls for an investigation arose less from a genuine effort to uncover the truth about a 1982 teen drinking party than from a desire simply to delay the vote. But with the submission of the FBI report, nods of approval from Sens. Flake and Joe Manchin, and Sen. Susan Collins’s powerful speech Friday announcing her support for Judge Kavanaugh, the last obstacles to confirmation evaporated. The Democrats spent a lot of credibility over seven days, but they didn’t get anything in return except the opportunity to grandstand.
If Sen. Feinstein was convinced that Ms. Ford’s allegations were serious, she should have shared them with the Judiciary Committee or law enforcement when they first came to her attention weeks earlier. That hesitation—and then the demand for a delay to conduct an FBI investigation—have combined to make Mrs. Feinstein look uncertain and perhaps unscrupulous. Judge Kavanaugh’s critics did not make themselves look better by turning on the FBI itself when it did not find what they wanted, with Sen. Richard Blumenthal making the McCarthyesque claim that it “smacks of a coverup.” Ms. Feinstein herself said “the most notable part of this report is what’s not in it,” suggesting (again) that she has access to some secret knowledge about the case that she won’t share.
Democrats have also cited Judge Kavanaugh’s angry testimony denying sexual assault as itself disqualifying—as if he had no business crying out while being stretched on the rack. He might not have been as deferential to the senators as norms of judicial gravitas would dictate, but he was certainly more poised than his inquisitors. In the end, even that line of attack accomplished nothing.
This process has inflicted real damage to Judge Kavanaugh and Ms. Ford—enough to make any intelligent citizen wonder if it would ever be worth entering public service. But the most immediate casualty is likely to be the much-hyped November blue wave. If a vote for a Democratic majority in the Senate is a vote for the tactics of Sen. Feinstein, or for the boorish behavior of Sens. Blumenthal, Cory Booker and Kamala Harris, then that vote may not materialize at all.
In the Missouri Senate race, Republican Josh Hawley has overtaken incumbent Sen. Claire McCaskill, largely in reaction to the Kavanaugh hearings. In North Dakota, Republican Kevin Cramer has opened up a yawning lead over Sen. Heidi Heitkamp. The newest Quinnipiac and NPR/PBS NewsHour polls show that the Democratic generic-ballot advantage has halved and the party’s enthusiasm advantage has vanished.
Napoleon counted on offensive bluster at Waterloo to give him victory, and it failed. By amplifying the politicization of the judiciary, Democrats may have achieved a Waterloo—but not the one they imagined.