2 liberal justices set right tone for latest U.S. Supreme Court

Brett Kavanaugh took his seat on the Supreme Court last week in a collegial atmosphere belying the bruising and bitter confirmation process that elevated him to the position and left the court and its importance in our system of checks and balances mired in political acrimony. For the sake of the institution, partisans on both sides should heed the words of two justices in describing how the court should move forward.

“We have to rise above partisanship in our personal relationships,” Justice Sonia Sotomayor said in a previously scheduled appearance just hours after Sen. Susan Collins, R-Maine, announced she would support Kavanaugh’s nomination and thereby assured his confirmation. “We have to treat each other with respect and dignity, and a sense of amicability that the rest of the world doesn’t often share.” Collins gave a calm but powerful speech explaining her vote, in essence saying there was simply no corroborating evidence of decades-old sexual misconduct claims that had been leveled against Kavanaugh after his initial confirmation testimony had concluded.

Sotomayor and Justice Elena Kagan — both appointed by President Obama and members of the so-called liberal wing of the court — were speaking at the Princeton University “She Roars” conference and could easily have whipped up a friendly crowd by blasting Kavanaugh.

“It’s just the nine of us,” said Kagan, who had hired Kavanaugh to teach a course at Harvard Law School when she was dean. “We all have a vested interest in having good relations with one another.” Sotomayor spoke of the importance of maintaining collegial relationships on the court even in times of disagreement. “If you start from the proposition that there’s something good in everyone, it’s a lot easier to get along with them.”

The confirmation of Kavanaugh was especially bitter for many Democrats, who view him as a reliable conservative vote replacing Justice Anthony Kennedy, who had been viewed as the “swing” vote on the court. Now that middle position is likely to be Chief Justice John Roberts, a generally conservative George W. Bush appointee who — to the chagrin of conservatives — cast the key vote upholding Obamacare. It will be up to Roberts, who has a sense of history of the court, to guide it through these difficult times. He has tended to favor a more incremental approach to judging and seeks a broader consensus where possible. And, he seems to understand the role of the chief justice as steward of the federal judiciary.

“He does have a sense of history and how the court will be judged,” said University of Illinois law school dean Vikram Amar. “It may fall on him to be even more of a self-conscious brake on the court than he was before.”

Meanwhile, some Democrats say they will push for further investigation and impeachment of Kavanaugh — a tenuous legal argument at best. And they should keep in mind the immense and possibly permanent damage that kind of fight would do to a court already under fire. A survey of nearly 800 judges who have attended the National Judicial College for training found 90 percent felt judicial independence is threatened.

Kavanaugh didn’t help matters with his intemperate criticisms of Senate Judiciary Committee Democrats when he responded to claims of sexual misconduct. He lashed out, accusing them of acting out of anger and seeking revenge for the election of Donald Trump. Kavanaugh, who served 12 years on the Circuit Court of Appeals in Washington, D.C., should have known better. He later acknowledged his remarks were inappropriate. They were. But he’s hardly alone. Ruth Bader Ginsburg, another on the court’s liberal wing, publicly attacked Trump on several occasions during the presidential campaign. Like Kavanaugh, she also expressed regret and acknowledged that her comments were inappropriate. They were.

We live in divisive times in a divided country. For the sake of this important institution, politicians and partisans of all stripes should reflect on the importance of the court, consider the Justices Sotomayor and Kagan’s words, take a deep breath and step back.