Long after they lay Brett Kavanaugh into the ground in his final resting place, we will still have a Supreme Court. People die, institutions live on. But the very fact that a Brett Kavanaugh could BECOME a justice of the Supreme Court will have diminished that body's reputation for some time to come. More than anything else, THAT is what is most appalling about Judge Kavanaugh's imminent elevation to the position of Supreme Court justice.
The Supreme Court is different. It doesn't derive its ability to shape this country's legal destiny through the sheer might of its institutional authority. The Court has no independent policing power. It controls no army with which it can impose its will on an often less than willing public. The only true power the Supreme Court has is its reputation for fairness, candor, and judicial probity. Brett Kavanaugh's presence on that Court as a justice diminishes that reputation immeasurably.
There are those on the political right who will attribute my negative attitude toward Brett Kavanaugh in terms of Christine Blasey Ford's accusation of sexual assault against him. They would be wrong. It's not that I didn't take her accusations against Judge Kavanaugh seriously. I did. But for me that just represented one MORE thing on the negative side of the ledger. I will state categorically that my first and foremost objection to Brett Kavanaugh's confirmation to the Supreme Court is his long career as a strictly Republican political operative. I sincerely believe that Mr. Justice Kavanaugh will interpret the Constitution through the eyes of political exigency. He will judge the cases that come before him not so much as an independent arbiter of the law but rather as a partisan Republican, something he has always been.
The implications that flow from this simple fact are staggering. For instance, how can a person of color approach the Supreme Court bench with any hope of an objective hearing knowing Brett Kavanaugh's long-stated position on affirmative action? How can someone representing the Democratic Party stand before a Justice Kavanaugh in a case involving partisan gerrymandering and expect justice, knowing full well of Brett Kavanaugh's sixteen year legal career as a Republican political operative? How can women take seriously Brett Kavanaugh's assertion that he believes Roe v. Wade represents "established law" when he so cavalierly lied before the Senate Judiciary Committee about his drinking and his complicity in stealing private documents from the Senate Judiciary Committee's staff, then controlled by Democrats? The presumption will always be that, in the end, with a "Justice" Kavanaugh on the Supreme Court there will be NO justice for certain litigants!
Even if I were to give him the benefit of the doubt, there will always be a stigma hanging over the Court due to his presence there, based on the very existence of that doubt in the first place. Liberals and progressives will always approach a Kavanaugh Supreme Court with justifiable hesitancy, fearing they won't be able to get a fair hearing from an entirely politicized Supreme Court. There will always be a palpable sense of skepticism about a Kavanaugh Supreme Court when it has to render a verdict in a case involving individual grievances against Corporate America. Can Robert Mueller conduct his investigation into the 2016 Presidential election and the possible collusion between the Trump campaign and the forces of Vladimir Putin with any sense of confidence that he won't be hamstrung by interference from Justice Kavanaugh on behalf of his political benefactor, President Trump?
It is conceivable that, in time, a Justice Kavanaugh can escape the stigma of sexual predator and belligerent drunk. After all, it's entirely likely that our perception of an 80 year old Brett Kavanaugh will be completely different than our present perceptions of him. But will he be able to wipe away his reputation as a political hack, elevated to the Supreme Court in order to legally mandate a political agenda? Will some of us ALWAYS see him as the strictly Republican political operative he has always been? I, for one, doubt it. And it is that doubt that leads me to believe that his presence on the Court will always diminish the Court's reputation for objectivity and fairness and thus undermine its moral authority. If that's the price we have to pay for Brett Kavanaugh's confirmation as justice of the Supreme Court, it will be too HIGH a price to pay!!
Filed under: Politics