Partisanship and the high court: Can Kavanaugh overcome the hearings?

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Brett Kavanaugh looks poised to become the newest justice on the United States Supreme Court on Saturday.

Senators spent the past two days taking turns in a room in a sub-basement on Capitol Hill to review the findings of an FBI investigation into multiple sexual assault allegations against Judge Kavanaugh. With Republican Sen. Susan Collins of Maine throwing her support behind Kavanaugh Friday afternoon, the most bitter and partisan confirmation fight of modern times looks like it will reach its conclusion with Saturday afternoon's vote.

If confirmed, there are widespread concerns that the attacks Kavanaugh both received and delivered over the past month could resonate long into the future.

For his sympathizers, his fiery statements last week were an isolated and commensurate defense against career-threatening allegations.

Accusing Democratic senators on the committee of “grotesque and coordinated character assassination,” Kavanaugh described the allegations as “a calculated and orchestrated political hit” fueled by anger over President Trump’s election victory, “revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

Supporters argue that these have little bearing on how he would perform as a justice compared with his record and reputation from the US Court of Appeals for the District of Columbia. Kavanaugh himself seemed to address concerns about his temperament and impartiality in an op-ed published in The Wall Street Journal Thursday evening, explaining that he was “very emotional” during the hearing and “said a few things I should not have said.”

“He’s always been fair and even-handed, and I would expect him to continue to do that if he were appointed to the Supreme Court,” says Jennifer Mascott, a former clerk for Kavanaugh who has known him throughout his 12 years on the D.C. Circuit and who teaches at George Mason University’s Antonin Scalia Law School. “What was happening at the hearing was a very specific set of circumstances, allegations brought against him that necessitated a personal response and direct response.”

Senator Collins didn't reference Kavanaugh's partisan comments in her speech today. Still, in the eyes of many others – from friends and former colleagues to a former Supreme Court justice – his defense against the allegations crossed a line that no nominee for the high court should cross.

His testimony “was a sad day for our country,” says Kermit Roosevelt, a professor at the University of Pennsylvania School of Law in Philadelphia. “Kavanaugh’s sense of partisan bitterness was disturbing in that it suggests partisan concerns will affect his judicial behavior.”

Partisan showdown

Supreme Court confirmations have become political war zones in recent years, but this particular confirmation was always likely to have even more partisan energy. Mr. Trump has committed to only nominating jurists with strong conservative credentials, and this nominee would replace Justice Anthony Kennedy, the court’s longtime swing justice who ruled in favor of liberals on issues like same-sex marriage, abortion rights, and affirmative action.

“We must always remember that it is when passions are most inflamed that fairness is most in jeopardy,” Collins said in her speech on the Senate floor. “Despite the turbulent bitter fights surrounding his nomination, my fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions, and so that public confidence in our judiciary and our highest court is restored.”

Given the context, it is perhaps unsurprising this confirmation played out as a more extreme version of another bitter confirmation battle.

Justice Clarence Thomas also fiercely defended himself against sordid allegations, in his case from Anita Hill, a former assistant at the Department of Education, during his 1991 confirmation. But while Justice Thomas, an African-American, famously called the eleventh-hour sexual harassment accusations a “high-tech lynching for uppity blacks,” he displayed a calm temperament in his response, never directly blaming Senate Democrats. The Democrat-controlled chamber ultimately confirmed him 52-to-48.

Last week, Kavanaugh was combative and hostile toward Democrats. He interrupted Sen. Dianne Feinstein (D) of California, the committee’s ranking member, and asked Sen. Amy Klobuchar (D) of Minnesota whether she had ever blacked out from drinking (he later apologized). The tone took aback even those who supported his confirmation.

“I was very troubled by the tone of [his] remarks,” said Sen. Jeff Flake (R) of Arizona, a moderate who last Friday pushed for the additional FBI investigation.

“I tell myself, ‘You give a little leeway because of what he’s been through,’ ” he added. “But on the other hand, we can’t have this on the court. We simply can’t.”

Benjamin Wittes, editor in chief of the Lawfare blog who says he’s known Kavanaugh for 20 years, wrote in the Atlantic, “the Brett Kavanaugh who showed up to [last week’s] hearing is a man I have never met.”

“Faced with credible allegations of misconduct against him, Kavanaugh behaved in a fashion unacceptable of a justice,” he added. “Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would, after that performance, consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence?”

More than 2,400 law professors signed a letter saying his testimony displayed a lack of judicial restraint that should be disqualifying. On Thursday, retired Justice John Paul Stevens, a Gerald Ford appointee who served on the court for 35 years, agreed.

“I’ve changed my views for reasons that have no really relationship to his intellectual ability or his record as a federal judge. He's a fine federal judge,” he said. “I think that his performance during the hearings caused me to change my mind.”

If confirmed, Kavanaugh would join a court with eroding public confidence. About half of Americans had a great deal of confidence in the Supreme Court prior to its Bush v. Gore decision in 2000, according to Gallup polling. In June, the most recent Gallup measurement, 37 percent of Americans had faith in the institution.

If Kavanaugh becomes part of a conservative majority in a controversial 5-to-4 decision, that could further damage the court’s reputation, says Jon Michaels, a professor at the University of California, Los Angeles, School of Law.

“Every time [a 5-to-4 decision] comes up we’re going to revisit those moments” from the hearing, he adds. “That’s going to reinforce concerns that the court is entirely political, and for some it will say this is a further reason why it’s not a legitimate body.”

‘I have not changed’

In his Wall Street Journal op-ed, Kavanaugh wrote that his testimony last week “reflected my overwhelming frustration at being wrongly accused ... [and] my deep distress at the unfairness of how this allegation has been handled.”

“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good,” he added. “I have not changed.”

“The best example of his judicial temperament is the temperament he brought to the bench for 12 years on the D.C. Circuit,” says Adam White, an assistant professor at the Antonin Scalia Law School. “He was an impartial and well-regarded judge throughout his time on the D.C. Circuit even after having worked in the Bush administration and for Ken Starr,” the independent counsel whose investigation of former-President Bill Clinton led to an impeachment vote.

And while Supreme Court confirmations are always political, what institutional damage they cause is typically confined to the Senate.

“What detracts from the court’s legitimacy is the conduct of the court in deciding cases,” he adds. “All judges are expected to take their personal attachments and personal instincts and personal feelings and set them aside as best as anyone can.... I would presume he like all judges will do the best he can, and he will succeed in that.”

The vote Friday morning suggests the investigation may have been enough to assuage the concerns the likes of Senator Flake harbored about Kavanaugh’s temperament. But for others, there are still lingering doubts.

For Professor Roosevelt “the main concern was less the emotion than the partisanship” Kavanaugh displayed last week.

“It’s very standard for judges to proclaim themselves nonpartisan, even when they then go on and act in partisan ways,” he adds in an email. “I take the more or less open admission of a partisan understanding of the world to be more informative than the standard denial.”

Ultimately, time would be the test of whether the Kavanaugh from the first hearing or the Kavanaugh from the second hearing would best reflect a Justice Kavanaugh.

Justice Thomas’s post-confirmation behavior is the closest, albeit still an imperfect, parallel. Already deeply conservative before he joined the high court, legal scholars don’t think the confirmation process changed his jurisprudence. It may have changed his behavior off the bench, however.

Unlike other conservative justices, such as Antonin Scalia, for many years Thomas kept a more selective public speaking schedule. For years he refused to speak at Ivy League law schools (including Yale, his alma mater), and fraternized mostly with other conservatives, according to Charles Fried, a conservative Harvard law professor and colleague of Thomas’s in the Reagan administration.

“The effect of that has been to harden his point of view and to make him more extreme and isolated in his ideas,” Professor Fried told NPR in 2011.

If he is confirmed, Kavanaugh will face a similar choice about whether to similarly cloister himself by socializing only with like-minded people.

Earlier this week he withdrew from a Harvard Law School class he had been scheduled to teach in January. Hundreds of alumni have called for his lectureship at the school to be rescinded, and current students have called for a school-led investigation into sexual assault allegations against him.

“He’s going to have to pick his battles if he is looking to win people over rather than just hunker down in his own camp,” says Professor Michaels. “Which way he goes will also be quite revealing.”

No matter how Kavanaugh conducts himself after he is confirmed, significant partisan opposition would remain. Senate Democrats have questioned the depth of this week’s FBI investigation – the White House barred agents from interviewing either Kavanaugh or his first accuser, Dr. Christine Blasey Ford. Other Democrats have discussed investigating whether he should be impeached. Gallup polling last week shows that Americans are closely and ideologically divided on his confirmation.

The court has responded to a fraught partisan moment in the recent past. Two years ago, as Senate Republicans blocked Judge Merrick Garland’s nomination, the short-handed and ideologically-split court avoided major cases and resolved many others on narrow legal grounds.

Still, every justice is a human being who is “the sum of the parts of a personal past,” wrote Lyle Denniston, a journalist who has covered the Supreme Court for 60 years, for the National Constitution Center. If Kavanaugh takes the anger and hurt feelings he says he’s felt in the past few weeks, his colleagues on the high court would be in a position to ensure that doesn’t damage the institution’s credibility.

“In the disciplines of the Court’s methods and habits, in the almost constant need to persuade others who bring their own visions and are just as smart as he is, in the reality that what he personally writes and makes public ought to read like law rather than spite, and that his ultimate standing in history will depend at least in part upon whether he has overcome the emotion of his experience as a nominee,” he wrote. “His colleagues would help him with that.”