Jurisprudence

Only the Seated Supreme Court Justices Can Save Us Now

The Kavanaugh debacle has taken us too far.

Brett Kavanaugh with other Supreme Court justices in background
Photo By Michael Reynolds-Pool/Getty Images

Donald Trump is running the table. He has managed, with his Brett Kavanaugh nomination circus, to undermine the FBI, the judicial branch, the media, and the legal academy. He’s done all that while being openly malevolent and revanchist about the dignity of sexual assault survivors in America. Everything the man touches turns to garbage and it’s surely just a happy accident that the institutions—like courts and federal law enforcement—that have been arrayed against him will all come out of this Supreme Court nightmare both tarnished and diminished.

Brett Kavanaugh started his campaign for the Supreme Court with a howler of a lie—he spoke straight into the camera and unflinchingly praised Donald Trump’s extensive and lengthy search for a fit nominee. And among the most intemperate howls he uttered during the spectacle that was last week was not just a conspiracy-minded claim about Democrats avenging the Clintons but also a throwaway line about a “calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” Kavanaugh always knew he would be tarred by his association with the most corrupt and venal president in history. Last week, though, he gave up all pretense and blurted out that he was being unfairly punished for it by liberal conspiracies. Or maybe everybody associated with Trump gets the Trump ick on them. Either way, this week, when Trump stood in front of a roaring crowd in Mississippi and mocked Christine Blasey Ford, Brett Kavanaugh perhaps realized that this too will stick to Brett Kavanaugh. His devoted patron? The president? Who’s been nothing but lovely to Kavanaugh and his family? Yeah, he’s a pig.

Kavanaugh, caught in falsehood after falsehood, and exonerated by an investigation that failed to investigate, has now managed, with his Trump-inspired performance of uncontrolled fury last week, to inject Trumpism directly into the Supreme Court. He has managed, in one short week, to secure the disapproval of more than 2,400 law professors, Republican appointee John Paul Stevens, the Washington Post, the ACLU, the American Bar Association, and myriad other entities that don’t take positions on Supreme Court nominations.

Kavanaugh has pleaded his case for evenhanded neutrality on Fox News and in the Wall Street Journal and gritted out, over and over, that he lives on the goddamn sunrise side of the mountain and screw you, America, for thinking otherwise—that last bit a very sunrise-side-of-the-mountain position to take, by the way. Even after all that has passed, it’s hard not to contrast his conduct with that of Merrick Garland, who did not take to Fox News or the op-ed pages or anyplace else to campaign for the seat that should, by this logic, have been his. Faced with vicious multimillion-dollar ad buys that served up fabricated claims about his record, Garland sat silent. He remains silent two years later, in no small part because he understands that the Supreme Court is greater than any one man and also that any one man can break it into pieces. In the face of a yearlong vacancy, Garland said nothing, because that is what anyone who reveres the law and the Constitution would do.

Kavanaugh has now forced the issue: Thousands of law professors have now taken sides, over his conduct at his hearing alone, and the court and the law will not easily recover from it. The reality show that is the Senate vote totters in the background. And Kavanaugh will join a bench on which his eight colleagues will have to endure a body blow to the prestige, independence, and integrity of the court itself, because Kavanaugh couldn’t stop himself from shouting polemical partisan conspiracy theories about the press and the Democrats to ensure his seat. No litigant will feel she is before an impartial tribunal and no law student will believe that the law is anything but bias and power. And the other eight justices? They will say nothing because they will understand better than anyone what has been lost this week.

So herein a modest proposal: The eight remaining justices should vote on Kavanaugh. Let’s let them be the arbiters of whether Kavanaugh has disqualified himself, either with untruths, or partisan attacks, or with open campaigning for a seat that seems to matter to him far more than the independence and esteem of the judiciary. If the whole sorry mess of this confirmation is to be triangulated against eight jurists who are precluded from saying one word in defense of the institution on which they sit, let those jurists make the final decision. If any one of the conservative justices wishes to break ranks and vote against Kavanaugh, so be it. If any of the liberals believes he is still fit to sit with them, it would be good to learn why. If the justices split 4–4 along partisan lines, at least we will have material proof that the institution is irredeemably broken along party lines. And if the remaining eight justices truly esteem the country, the court, and the public trust more than they like any one affable man, they could let us know. And it would be awfully good to know.

Please don’t tell me my solution is unconstitutional; I am well aware of its infirmities. But if the court is about to cement its status as a national joke, a football subject to power grabs and convenient moral blindness, maybe it would be best for the American people to see and hear that, and from the justices themselves. If and when Kavanaugh is sworn onto the court, the other eight justices will spend the better part of their lives trying to find institutional cover for the damage they have sustained this month. One might think they’d like to nip that in the bud, or at least to evince awareness of what’s happening. Let’s allow the eight sitting justices to confirm Kavanaugh. If they want to confirm him, we can at least say that they made the choice to hurt the court themselves.