Brett Kavanaugh, former appellate judge for the District of Columbia Circuit, graduate of Yale Law School, and recent subject of multiple sexual assault allegations, is now an Associate Justice of the Supreme Court. For better or for worse, he is now beyond the reach of public opinion, and will make rulings equally with the Court’s other eight justices.
We cannot, however, ignore the exceptional circumstances that led to Kavanaugh’s confirmation, or the unusual ramifications that are now likely to occur. This article adapts analysis from FiveThirtyEight and the Washington Post to address the possible consequences of the Kavanaugh confirmation in three areas: the Nov. 6 midterm elections, the Court’s ideological makeup, and the future of Senate judicial confirmation processes.
November’s national midterm elections are now only one week away, and the accompanying political chatter is far too disparate to know for certain how Kavanaugh’s confirmation might affect the results. We know two things for sure.
First, the controversial second round of Senate hearings, in which Dr. Christine Blasey Ford of Stanford presented her memory of Kavanaugh attempting to rape her in the early 1980s, appears to have increased Republican excitement about the election. Immediately following the Sept. 27 - Oct. 5 hearings, Republican candidates saw a bump in support that spanned both the national generic ballot and individual swing districts. The bump made Republicans 9 percent more likely to control the Senate, and 7 percent more likely to control the House, according to FiveThirtyEight’s election forecasting model. However, it still remains likely that the House will fall under Democratic control, while the Senate will remain under Republican control after Nov. 6.
Second, Democratic third quarter fundraising numbers, released October 16, look extraordinarily good. Democrats are outraising Republican incumbents in at least 92 House races, with a staggering $385 million raised through the online fundraising platform ActBlue, Democrats’ new silver-bullet fundraising vehicle. Some of this donor activity can be traced conclusively back to Kavanaugh — Democratic donors pledged an unprecedented $3.7 million through the left-leaning crowdfunding website Crowdpac to defeat Sen. Susan Collins (R-ME) after she voted in favor of Kavanaugh’s confirmation.
Justice Kavanaugh’s confirmation is a major policy victory for President Trump, who campaigned on the promise that he would secure a conservative majority on the Supreme Court. With the confirmations of Justice Gorsuch and Justice Kavanaugh, that promise has been kept. According to Judicial Common Space scores, which use the ideology of nominating politicians to predict future judicial ideology, Justice Kavanaugh may fall almost as far right as arch-conservative Justice Clarence Thomas. Because Justice Kavanaugh replaced Justice Kennedy, the former moderate swing vote, Chief Justice Roberts is the new swing vote. Roberts is solidly conservative, having crossed over as a liberal swing vote on only five occasions during his 13-year tenure on the Court. The new Court, with Roberts as the swing vote, appears likely to be the most conservative court since Justice O’Connor was the court’s swing vote in the early 2000s. Additionally, this transition may constitute the sharpest right turn for the Court since the nominations of Chief Justice Burger and Justice Blackmun in the late 1960s. Such a significant shift towards conservatism will have a long-lasting impact on the Court’s decisions, including near-future challenges to Roe v. Wade, the Affordable Care Act, and perhaps even the Mueller probe, all of which could potentially appear as soon as the spring of 2019.
People on all sides of the Kavanaugh issue appear to agree on at least one thing — the confirmation hearings were a fiasco. Featuring dramatic, tearful testimony, explosive cross-examination, an eleventh-hour FBI investigation, and wildly barefaced partisan maneuvering, they were like no Senate confirmation hearing in recent memory.
Even the 1991 hearings for Justice Clarence Thomas, who was also accused of sexual assault and also won his confirmation by an extremely narrow vote margin, did not approach the Kavanaugh hearings in terms of plain partisanship or high public sentiment. Nominees to the Supreme Court typically present themselves to the Senate as calm, neutral arbiters of the law, thoroughly above the petty concerns of partisanship or politics. Not so with Kavanaugh. During his afternoon defense, Kavanaugh appeared angry and emotional, and went so far as to call Dr. Ford’s testimony “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election… revenge on behalf of the Clintons.”
Few observers had predicted such a performance. Some appeared to be proud of Kavanaugh’s fiery defense, including President Trump, but others expressed deep concern. Retired Justice John-Paul Stevens stated that Kavanaugh’s performance should disqualify him from the Court, saying that, “I’ve changed my views for reasons that have no [real] relationship to his intellectual ability or his record as a federal judge...I think that his performance during the hearings caused me to change my mind.” Kavanaugh’s introduction of deep partisanship into the traditionally staid judicial confirmation process may set a damaging precedent. Future nominees may not feel as strongly bound to the dictates of judicial decorum, potentially delegitimizing the “blind justice” of the American court system.
The circumstances of Justice Kavanaugh’s confirmation to the Supreme Court are cause for deep concern. There are few historical confirmations that can be compared to Kavanaugh’s in degree of scandal or political rancor, but his opinions are now poised to shape several future decades of American jurisprudence. American civic discourse is endangered by the puerile antics of the current administration and by the schismatic tenor of the modern political milieu. It is up to the voters — up to us — to restore decency to politics. Nothing will change if we give up now.