For a month, Brett Kavanaugh was the epicentre of an earthquake in American public life whose shock waves jolted Washington and surged into workplaces and homes from coast to coast. For the next several decades, he will be part of the judicial body charged with sorting through the political rubble of a deeply shaken country.
Saturday’s vote sending Justice Kavanaugh to the U.S. Supreme Court concluded a remarkable journey – tortured and tortuous – from beleaguered nominee to ensconced lifetime member of the country’s highest court. But the Senate’s 50-48 tally did not end the controversy surrounding the 53-year-old judge and, in fact, spawned fresh questions about the role and stature of the Supreme Court in American life, the nature of political conduct in Washington and the divides between the parties, ideologies and sexes.
In short, the Kavanaugh episode produced a court that mirrors the divisions in American society – and possibly the fury.
‘’This whole thing is a sledgehammer continuing to smash American institutions,’’ one of the country’s leading historians, Douglas Brinkley of Rice University, said in an interview. ‘’We are in a period where everything is a zero-sum game for the country. This fight has made our tribalism much more vociferous and has polarized us even further. The anger is palpable on both sides and it will take a very long time to recover from this.’’
Nobody escaped the Kavanaugh episode unscathed. There is debris in every corner of a political system that is girding for vital midterm congressional elections only a month away. The latest Rasmussen Reports survey showed that 65 per cent of Americans gave poor marks to the Senate for its conduct of the Kavanaugh matter.
Moreover, the hearings and the confirmation fight have mobilized Americans on all sides. The result is a set of elections freighted with unusual urgency and nearly unprecedented invective.
But the greatest effect may be on the very governmental institution the judge joined Saturday, creating perhaps the most conservative American high court in three-quarters of a century and almost certainly the most fractious in modern times.
GOP Senator Susan Collins of Maine, in a high-profile speech announcing she would support the nomination, cited ‘’public faith in the judiciary’’ as one of the principal casualties of the Kavanaugh debate. Hours later, in remarks at Princeton University, Associate Justice Elena Kagan said that the court’s legitimacy depends on ‘’people not seeing the court the way they see the rest of the governing structures of the country now.’’
In sitting in judgment of a man who now is a Supreme Court justice, the Senate – assisted by the testimony of Justice Kavanaugh himself, in which he attacked the Democrats on the Senate Judiciary Committee and spoke disparagingly of ‘’the Clintons’’ – almost certainly gave a political patina to the high court and stripped away the last vestiges of what the Mount Holyoke College scholar Joseph J. Ellis describes, in a coming book on the American founders, as “a kind of electromagnetic field” that, in myth if not always in reality, walled off the Supreme Court from the passing passions of American political life.
‘’In the short term, people who don’t know much about the court – and more people can name two of the seven dwarfs than two members of the Supreme Court – will look at 5-4 decisions where Kavanaugh is in the majority and will know who he is and the optics will not be great,’’ said David Fontana, an expert of constitutional law at the George Washington University.
This recent episode only reinforces the political fissures that have marked American life for the past two decades.
‘’The partisan battles in the rest of our public lives have intruded into the Supreme Court,’’ said Christopher Edley Jr., a legal scholar at the University of California, Berkeley, where he served as dean of the law school for a decade. ‘’The narrative about partisan differences is easier for the public to understand than the serious issues of the law. People understand ‘conservatives versus liberals’ and ‘Republicans versus Democrats.’ ‘’
In the meantime, the most imminent issue: How often, and on what topics, will Justice Kavanaugh, whose partisan views now are well known, recuse himself?
The surprise answer: It depends wholly on the new associate justice himself.
The U.S. Code of Judicial Conduct’s rules on recusals is binding on all federal judges – except members of the Supreme Court. In 2005, Chief Justice John Roberts Jr., arguing that the separation of powers in the U.S. Constitution limited any interference from Capitol Hill and the White House, said that ‘’each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case."
In a political passage marked by divisions, the only agreement is that the divisions have been widened.
‘’In the short term, politics is going to be even worse,’’ said Representative Seth Moulton, a Massachusetts Democrat regarded as one of the leaders of the new generation of American political figures. ‘’After this election you will see a new generation of leaders who do have the courage to make a difference. Both in Iraq, which had a litany of problems, and in Congress, which seems like it is coming apart right now, I’ve seen that leaders can make a difference. The last couple of weeks have shown us how important that can be.’’