The fight over Brett Kavanaugh’s nomination to the Supreme Court has ended with a double defeat for Democrats. Not only will he sit on the Court; the confirmation battle has also roused Republicans for the November election and helped close the “enthusiasm gap” that existed earlier this year.
That’s not to say Democrats should have ducked this fight. There’s no way to win in politics or in anything else if you give up in advance. And the Kavanaugh battle may bring about one good result, though it’s nothing to cheer about.
Many Americans have an out-of-date view of the Supreme Court as a bulwark of liberalism. In fact, Republican presidents have made 15 out of the last 19 Supreme Court appointments, and the rulings of the most recently appointed justices have increasingly followed partisan lines. The decisions about same-sex marriage and a few other highly publicized cases have even misled many liberals and progressives into thinking the Court is more liberal than it is. Now that Kavanaugh is replacing Anthony Kennedy, they should be disabused of that illusion.
In his appearance before the Senate Judiciary Committee, Kavanaugh unmasked himself as a raw partisan, consistent with his long career as a Republican operative. As retired Justice John Paul Stevens later said, Kavanaugh’s partisanship should have disqualified him from a seat on the Court. But the entire episode—what Kavanaugh said, the disrespect he showed the Democratic senators, and the Republicans’ decision to ignore that naked partisanship—will have a healthy effect in clarifying that the Supreme Court is going to become an even more partisan, right-wing institution than it has been.
During the confirmation battle, many people cited Kavanaugh’s naked partisanship as a reason for the Senate not to confirm him. For example, Benjamin Wittes, the conservative editor-in-chief of Lawfare, wrote in The Atlantic:
Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would after that performance consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence?
What was a reason not to confirm Kavanaugh has now become a basis for questioning the legitimacy of the Court’s future decisions.
We already had one justice, Neil Gorsuch, occupying a seat as a result of Senate Republicans’ determination to ignore long-standing norms about Court appointments when they refused to consider Merrick Garland. Now we have two such justices whom Democrats are not bound to respect.
Many observers have been wringing their hands about the lost legitimacy of the Court in the wake of the Kavanaugh fight. But let us be clear about the responsibility for that lost legitimacy. Republicans made the choice of putting aside any concerns about judicial impartiality. If the Court’s right-wing decisions now have less legitimacy, they will have brought that result upon themselves—and let us at least be thankful for that naked show of partisan power. No one can pretend the Court’s majority is now anything but an extension of the Republican Party; at best, it will hold back from being an extension of Trumpified Republicanism.
The advocates of liberal causes have long relied excessively on the courts and on litigation as a way to achieve advances in rights to equality. That era, dating back to the Warren Court, did see important victories, but same-sex marriage may well be the last one. With Kavanaugh on the Court, we should all be clear that liberals and progressives have no way forward except by winning electoral majorities. Going to court will be mostly only a defensive move, and the hope of winning even in those cases will be increasingly slim.
Somewhere down the road, assuming Democrats ever do regain control of both Congress and the presidency, they are going to confront a Supreme Court that threatens to block major liberal initiatives. As I wrote last month (“The Big Choice about the Supreme Court Democrats Will Face”), Democrats will probably have to consider a two-track approach at that point. To deal with the immediate threat of a judicial veto over their entire program, they will need to put on the table the option that the Constitution leaves open: enlarging the Court and appointing new justices, as Republicans did in the 1860s and as Franklin Roosevelt proposed in the 1930s—hardball strategies that in both cases succeeded in deterring the Court from blocking reforms by the elected branches.
At the same time, Democrats should also seek to negotiate long-term constitutional reforms of the Court, though these would not address the immediate challenge they face. One such reform is to limit Supreme Court justices to a single, 18-year term, with those terms staggered so that an appointment comes up every other year. Winning the presidency would then mean getting two Court nominations per term. Fixed terms for the Court would reduce the tendency toward self-perpetuating majorities that results from justices deciding to retire only when a president of their own party is in office.
During this past week's television discussions about the Kavanaugh confirmation, I heard more than one liberal commentator say that there should be an asterisk after future five-to-four Supreme Court rulings in which Kavanaugh provides the deciding vote.
Adding an asterisk to those rulings is the least of what we will need to do. The immediate imperative for Democrats is to build electoral majorities to do through legislation what can no longer be done through litigation. And if they succeed in winning control of the elected branches, they will probably need to take on the Court directly, as the forces of reform found it necessary to do during Reconstruction and the New Deal. The Republicans’ breach of norms will have left Democrats no choice.