HE SAID, SHE SAID... THEY ALL LOST
Brett Kavanaugh will join the top US court, but the battle over his nomination only magnified divisions in the US, writes Dan Balz
THE confirmation battle over Judge Brett Kavanaugh to the US Supreme Court has left America as it was before Donald Trump selected him — deeply divided, politically polarised and with many people hostile toward those of opposing views.
But that hardly means everything has reverted to the status quo. The divisions have been magnified because of this raw, wrenching moment in the history of the US.
Kavanaugh was last night sworn in as a US Supreme Court judge after his appointment was backed 50-48 in the US Senate.
The intensity of these kinds of clashes sometimes fades with time, but unless and until that happens, the Kavanaugh confirmation marked the US political landscape in significant ways — in the mid-term elections, at the Supreme Court and on the already growing political divide between women and men. This judicial nomination was always destined to become a brutal battle — given that Kavanaugh can turn what had been a swing vote when Anthony Kennedy held the seat into a solid conservative one that will shift the balance on the court to the right for many years.
If that weren’t reason enough for this nomination to produce political heat, there was the added factor that Democrats were still infuriated over the Senate majority leader Mitch McConnell’s refusal to allow a vote or even a hearing on then-President Obama’s nomination of Judge Merrick Garland in early 2016, after the death of the conservative Judge Antonin Scalia.
So this was a classic philosophical confrontation between what Americans now call “left and right” — though neither side is what we on this side of the Atlantic would even remotely consider “left”.
Republicans started the judicial nomination battle with a stronger hand and took full advantage. Trump waged the battle as he always does, with full-on tactics that the Democrats could not overcome.
But it became more than a political power struggle over the direction of the court when Professor Christine Blasey Ford accused Kavanaugh of sexually assaulting her when both were in high school, which was followed by other allegations about his misconduct. All of this brought to the forefront a cultural awakening about the treatment of women by men.
Politically divisive events have become almost commonplace these days — but rarely do they play out so close to what already was seen as a pivotal midterm election. Which is why the most immediate impact of the Kavanaugh confrontation will be seen in the mid-term elections. The bases of both parties are now more energised than they were. If those sentiments hold through to election day, Democrats could benefit in the contest for control of the House, while Republicans could benefit in the Senate elections, thanks to the geographical realities of the most contested races.
If college-educated women are angry at the treatment of Ford, that will help Democratic House challengers in suburban districts held by Republicans and increase the odds of Democrats picking up more than the 23 seats they need for a majority. If Trump’s loyalists are energised, that could hurt red-state Democrats — and that could help the GOP avoid losing control of the Senate. They might even end up with an enhanced majority.
The US Supreme Court could feel the effects over a longer period of time, now that it has been caught up in the political maelstrom.
The court may be political in the broadest sense, but it is supposed to be seen as impartial, deliberative and, most of all, non-partisan. That gloss has faded due to a series of events in recent years, but the Kavanaugh confirmation makes the problem far more acute.
Every justice must weigh the impact on the court, and chief justice John Glover Roberts now has one more unwelcome issue added to his personal docket as America’s top judge. But no one on the nine-member court will face more questions than Kavanaugh.
His angry demeanour on the day he sought to defend himself against the charge of sexual assault by Christine Blasey Ford could stamp him in the public’s perception indefinitely. In his defending himself against charges that he insisted were false and defaming, Kavanaugh said things no modern Supreme Court nominee had ever said in trying to win confirmation: he attacked Democrats and accused opponents of looking for “payback” because of Trump’s victory in 2016.
In a sign of just how much damage he had done to himself, Kavanaugh published an op-ed piece in last Friday’s Wall Street Journal under the headline ‘‘I am an Independent, Impartial Judge’’. In the piece he acknowledged that his “tone was sharp and I said a few things I should not have said”. He said his presentation reflected “my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character”.
What he did not address was the fact that some of the harshest, most partisan language came in testimony prepared in advance — words Kavanaugh explicitly said were his alone.
Twice Kavanaugh went to the media, itself an unusual step. Twice he chose outlets — the Journal’s editorial page and Fox News — whose audiences are conservative. That too was a sign that he accepted the role of partisanship in this battle.
In the concluding paragraph of his op-ed, he wrote: “I believe that an independent and impartial judiciary is essential to our constitutional republic.”
The strategy he employed to save his confirmation raised questions about his judicial temperament. He will have an opportunity to answer the questions now surrounding him with his rulings, his writings and his judicial conduct in the coming months and years.
The Kavanaugh nomination played out at a time of growing awareness of the harm that has been done to women over years and years. It proved to be another consciousnessraising moment in the year of #MeToo and one that produced almost irreconcilable differences between partisans on the two sides.
For defenders of Kavanaugh, this was, as Trump put it, a scary moment for men who fear they can be falsely of sexual harassment. They argue, as McConnell did repeatedly on Kavanaugh’s behalf, that no one was able to corroborate Ford’s charges — that innocent until proven guilty is still a fundamental principle of American justice. This view is also held by many women who are loyal to Trump, who have known and worked with Kavanaugh or who want to see more conservative judges appointed to the courts.
Kavanaugh’s opponents believe there was never any intention of getting to the truth, that the FBI investigation launched a week ago was inadequate and incomplete and subjected to constraints by the White House. But that’s only part of why the episode was so searing.
For the defenders of Ford, and especially for women, the confirmation of Kavanaugh left them wondering what if anything has really changed in the year since The New York Times published its first story about Harvey Weinstein. They will ask, why, when there was doubt about who was telling the truth — and there was doubt among many — the benefit of that doubt went to the man and not the woman?
All of that suggests that, even in an era of short attention spans, the Kavanaugh confirmation fight could be far more than a mere moment in time.
‘Kavanaugh said things that no modern Supreme Court nominee has ever said...’