Kavanaugh bitterness building into backlash
The partisan fury that erupted over the Supreme Court justice’s confirmation was fierce, but a greater conflagration is growing.
The bitter WASHINGTON — partisan fury that engulfed Justice Brett Kavanaugh’s Supreme Court confirmation was the fiercest battle in a political war over the judiciary that has been steadily intensifying since the Senate rejected Judge Robert H. Bork in 1987.
But an even greater conflagration may be coming.
“This confirmation vote will not necessarily be the last word on Brett Kava- naugh serving a lifetime appointment on the Supreme Court,” said Brian Fallon, executive director of the lib- eral group Demand Justice and the top spokesman for Hillary Clinton’s 2016 pres- idential campaign.
Facing a Supreme Court controlled by five solidly conservative justices, lib- erals have already started to attack the legitimacy of the majority bloc and discussed ways to eventually undo its power without wait- ing for one of its members to retire or die.
Some have gone as far as proposing — if Democrats were to retake control of Congress and the White House in 2020 or after — expanding the number of justices on the court to pack it with lib- erals or trying to impeach, remove and replace Kava- naugh.
Either step would be an extraordinary violation of constitutional and political norms. No justice has been removed through impeachment. And a previous attempt at court pack- ing, by President Franklin D. Roosevelt after a conser- vative-dominated Supreme Court rejected important parts of his New Deal ini- tiatives during the Great Depression, is broadly seen as having been misguided.
Either step would also face steep odds. Some Republi- cans would have to go along for them to work: a court-ex- pansion bill would need the support of 60 senators to overcome a filibuster, and while a simple majority of the House could vote to impeach, removal would require twothirds of the Senate.
Still, even the political pressure of the threat might make some of the conserva- tive justices more cautious. While Congress rejected Roosevelt’s court-reform bill, the court changed course while lawmakers were consider- ing it and started uphold- ing New Deal laws — a move called “the switch in time that saved nine.”
Today, the majority five on the Supreme Court are all movement conservatives — Republican lawyers who came of age after an ideo- logical backlash a generation ago to decades of lib- eral court rulings.
As judges, they tend to rule more consistently for conservative outcomes than older Republican appointees, like retired Justice Anthony M. Kennedy.
And just as in the early decades of the 20th century, when a conservative-dominated Supreme Court repeat- edly struck down progressive economic policies like child labor and minimum-wage laws leading up to the New Deal fight, Democrats fear that the new majority will systematically crush their achievements — not just hollowing out past gains like abortion rights, but also striking down programs they hope to enact if they regain power, like expanding Medi- care or efforts to curb climate change.
For the next few weeks, many Democratic strategists want to change the subject from the Supreme Court, hoping that Republican voters’ passions aroused by the Kavanaugh fight will fade before the midterm elec- tions. Noting that the elec- tion is approaching, Sen. Chris Coons, D-Del., said on NBC’s “Meet the Press” on Sunday that talk of impeaching Kavanaugh was “premature.”
“Talking about it at this point isn’t necessarily healing us and moving us forward,” he said.
But Sen. Lindsey Graham, R-S.C., said on “Fox News Sunday” that he intended to help House Republicans in swing districts campaign on the issue over the next month, saying their Dem- ocratic opponents should be asked whether they supported impeaching Kavana- ugh and “Do you want an outcome so badly that you would basically turn the law upside down?”