The Good Fight

The Kavanaugh Stakes Just Got Higher

To confirm him now would be dangerous to the survival of our democratic institutions.

The Supreme Court and Brett Kavanaugh getting sworn in to testify.
Photo illustration by Slate. Photos by Drew Angerer/Getty Images and Andrew Harnik-Pool/Getty Images.

At this moment of feverishly intense partisanship, it takes a great deal of courage to tiptoe away from your own tribe. Sen. Jeff Flake has not yet announced that he is willing to part for good; in the end, he may yet betray his professed principles and cast his vote to confirm Brett Kavanaugh. And yet, we should not underestimate how much strength it took for him to demand an investigation into Christine Blasey Ford’s serious allegations of sexual assault and delay the judge’s confirmation by at least a week. For now, he has proved to be one of the few people in the Senate—and perhaps one of the few in the whole country—who have insisted on taking Ford’s allegations seriously even though he actually shares most of Kavanaugh’s judicial views.

For the sake of our country, all of us should now hope that the FBI manages to uncover conclusive evidence that either supports or dispels Ford’s accusations. Unfortunately, that seems unlikely. So the big risk we now face is that the same hell we have lived through for the past 48 hours will be repeated in even more farcical form next week. And that is why it’s very important to use this time to reflect seriously on how judicious people—and perhaps especially senators like Flake who profess to be conscientious conservatives—should vote if they have not made up their mind about the allegations.

It is painfully obvious that most Republican senators will vote to confirm Kavanaugh if the allegations against him are anything short of iron-clad; indeed, one shocking poll suggests that a majority of Republicans voters, and nearly half of evangelicals, would support his confirmation even if they did believe that he is guilty. It is also obvious that most Democrats will vote against his confirmation even in the unlikely case that the FBI should somehow manage to disprove Ford’s allegations; indeed, Kavanaugh’s extreme views on executive power provide a strong reason for any defender of liberal democracy to oppose his nomination. And yet, I think that one very important consideration has largely been overlooked.

Let us assume, for the sake of argument, that Kavanaugh is an innocent man. If that’s the case, the raw anger he displayed during Thursday’s confirmation hearing is certainly understandable. While we might wish for a public figure to keep his poise even when his reputation is being impugned, it is perfectly human to lose your countenance under such circumstances.

But even under that charitable interpretation, Kavanaugh’s performance in front of the Senate Judiciary Committee makes him eminently unfit to sit on the highest court of the land.

A justice on the Supreme Court has to rule on a whole host of issues that are of huge partisan significance: If he is confirmed, he will have to settle substantive questions of public policy—from abortion rights to the health care mandate—on which Democrats and Republicans have hugely differing preferences. Just as importantly, he will also help to set the parameters that are supposed to ensure that Democrats and Republicans can appeal for the votes of their fellow citizens on fair terms.

But how can somebody who has accused Democrats of a “calculated and orchestrated political hit” be seen as impartial when he rules on a gerrymandering case that could deliver a huge advantage to Republicans? How can somebody who describes serious allegations of sexual assault as “revenge on behalf of the Clintons” be expected to give both sides a fair hearing if the outcome of a presidential election should once again be litigated in front of the Supreme Court? And how can somebody who denounces the “frenzy on the left” to derail his nomination be trusted to ensure that the left’s most vocal enemy, Donald Trump, does not overstep the bounds of his constitutional authority?

Because of Mitch McConnell’s refusal to hold hearings on the confirmation of Merrick Garland during the last year of Barack Obama’s presidency, the current composition of the Supreme Court is already tainted. Now, the confirmation of as nakedly partisan a jurist as Kavanaugh would go a long way toward destroying whatever remains of the Supreme Court’s legitimacy. And this would not only tank the trust Americans have in the last branch of government that has, according to polls, consistently been more popular than secondhand car salesmen; it also significantly raises the likelihood that Democrats will engage in yet another round of tit for tat.

Precisely because partisans need to be able to trust that courts can enforce the rules for fair political competition between them and their adversaries, attempts by a political party to change the ideological makeup of the judiciary are extremely dangerous to the survival of democratic institutions. That’s why (direct or indirect) court-packing schemes have been key elements of the authoritarian takeovers in Russia, Turkey, and Venezuela. And it’s also why the current governments in Poland and Hungary are playing constitutional hardball to ensure that judges they appoint command a majority on the most important courts in their respective countries.

There can therefore be little doubt that any attempt by Democrats to pack the Supreme Court, for example, by expanding its size, would be another step in a tit-for-tat spiral at whose end autocracy awaits. And yet, recent events will make it very hard for those voices within the Democratic Party that recognize this danger to prevail. If one side is so willing to abuse precedent and decency to, as Kavanaugh might put it, screw the libs, it becomes very difficult for the other side not to reciprocate in kind.

This is why Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of American politics. The GOP and Trump are now more fully aligned than ever. Our country’s partisan divide is deeper than it has been in living memory. The mutual hatred and incomprehension is more acute than it has been in decades. If Kavanaugh is confirmed, it’s very, very difficult to envisage what path could possibly lead us out of this nightmare.

Jeff Flake has acted with much more courage and decency than most liberals care to admit. But the responsibility that now rests on his—and Sen. Lisa Murkowski’s and Sen. Susan Collins’—shoulders is even greater than he might realize.