Ka­vanaugh squeezes onto the Supreme Court

The Week (US) - - 4 News - Jonathan Bern­stein Barry Fried­man

What happened

Jus­tice Brett Ka­vanaugh heard his first ar­gu­ments on the Supreme Court this week af­ter one of the most bit­terly con­tested con­fir­ma­tion bat­tles in Amer­i­can his­tory. The Se­nate voted 50-48 to con­firm Ka­vanaugh shortly af­ter re­ceiv­ing the re­sults of a lim­ited FBI in­ves­ti­ga­tion into sex­ual as­sault al­le­ga­tions against him made by Cal­i­for­nia re­search psy­chol­o­gist Chris­tine Blasey Ford, who knew the judge in high school, and for­mer Yale class­mate Deb­o­rah Ramirez. Sen­a­tors were al­lowed to re­view a sin­gle copy of the re­port in­side a se­cure room on Capi­tol Hill. The re­sults were enough to per­suade un­de­cided Repub­li­can Sens. Jeff Flake of Ari­zona and Su­san Collins of Maine to cast their vote for Ka­vanaugh, as well as Joe Manchin III of West Vir­ginia, the only Demo­crat to vote “yes.” The vote, which took place amid screams of “Shame!” from protesters in the gallery, was the nar­row­est con­fir­ma­tion vote since 1881.

At a swear­ing-in cer­e­mony at the White House, Pres­i­dent Trump apol­o­gized to Ka­vanaugh “on be­half of the na­tion” for the pain he and his fam­ily en­dured through­out the con­fir­ma­tion process. “You, sir, un­der his­toric scru­tiny, were proven in­no­cent,” Trump said. Democrats, mean­while, com­plained that the nar­row FBI in­ves­ti­ga­tion or­dered by the White House was too lim­ited and rushed, with the bu­reau ig­nor­ing tes­ti­mony of­fered by sev­eral of Ka­vanaugh’s for­mer col­lege class­mates who said they’d wit­nessed him be­hav­ing bel­liger­ently af­ter heavy drink­ing. “I take this of­fice with grat­i­tude and no bit­ter­ness,” said Ka­vanaugh, whose con­fir­ma­tion ce­ments the court’s con­ser­va­tive ma­jor­ity. “I will seek to be a force for sta­bil­ity and unity.”

What the editorials said

“Jus­tice pre­vailed,” said the Na­tional Re­view. Ka­vanaugh’s op­po­nents never pre­sented cor­rob­o­rat­ing ev­i­dence that the judge com­mit­ted sex­ual as­sault, but liberals and their al­lies in the me­dia treated the ac­cu­sa­tions against him as tan­ta­mount to a con­vic­tion. Of course, Ka­vanaugh wasn’t tech­ni­cally “on trial,” but the pre­sump­tion of in­no­cence is an in­te­gral part of our sys­tem. If the Se­nate had re­jected Ka­vanaugh on such “flimsy” grounds, “the prece­dent would have been dis­as­trous.” Nev­er­the­less, fu­ri­ous Democrats are al­ready vow­ing re­venge, said The Wall Street Jour­nal. If they win con­trol of the House in Novem­ber, there will be more di­vi­sive in­ves­ti­ga­tions and even pos­si­ble im­peach­ment of Ka­vanaugh. “We doubt this is what most Amer­i­cans want from Congress, but it is where the Re­sis­tance will drive Democrats.”

“Ka­vanaugh’s vic­tory is a loss for Amer­ica,” said Bloomberg.com. The ac­cu­sa­tions against Ka­vanaugh were never “thor­oughly in­ves­ti­gated.” The FBI ig­nored po­ten­tially key wit­nesses and didn’t even in­ter­view the judge him­self be­cause the White House did not want him to be ques­tioned on the record. Of

What next?

even greater con­cern, Ka­vanaugh ir­repara­bly un­der­mined the court’s le­git­i­macy with his nakedly par­ti­san de­fense, in which he an­grily blamed the ac­cu­sa­tions against him on a con­spir­acy of “left-wing op­po­si­tion groups” seek­ing “re­venge on be­half of the Clin­tons.” How can he cred­i­bly rule on cases in­volv­ing Democrats, lib­eral ac­tivist groups, or fem­i­nists? “The tox­ins re­leased by this de­ba­cle threaten to poi­son the court, and the coun­try, for years to come.”

What the columnists said

Conservatives have pulled off a “ju­di­cial coup,” said E.J. Dionne Jr. in The Washington Post. First, Repub­li­cans stole a court seat from Pres­i­dent Barack Obama to fill it with the hard-right Jus­tice Neil Gor­such. Then they rammed through Ka­vanaugh’s con­fir­ma­tion with a bare ma­jor­ity of sen­a­tors rep­re­sent­ing just 44 per­cent of the pop­u­la­tion. Such bare-knuck­led tac­tics mean conservatives now have a solid 5-4 ma­jor­ity that may en­dure for decades, with four of their jus­tices appointed by pres­i­dents who lost the pop­u­lar vote. When Democrats re­gain power, they should se­ri­ously con­sider ex­pand­ing the size of the Supreme Court to ap­point more lib­eral jus­tices. If Repub­li­cans can en­gage in ruth­less “court pack­ing” to achieve ide­o­log­i­cal goals, so can Democrats.

So much for those pre­cious “norms” liberals claim to care so much about, said David Harsanyi in TheFed­er­al­ist.com. The Se­nate held hear­ings in which both par­ties were able to ques­tion Ka­vanaugh and his ac­cuser. Repub­li­cans even as­sented to ad­di­tional hear­ings and an FBI in­ves­ti­ga­tion to ad­dress the leaked al­le­ga­tions against him, even though they were largely un­sub­stan­ti­ated. Then the Se­nate voted, and Ka­vanaugh got a ma­jor­ity of votes. The sys­tem worked, but “ac­cord­ing to liberals, ev­ery con­ser­va­tive-run in­sti­tu­tion is il­le­git­i­mate.” Now, Democrats are com­plain­ing they some­how didn’t fight “hard enough” to de­feat Ka­vanaugh. Af­ter the scur­rilous tac­tics we’ve just wit­nessed, I’d hate to see what real fight­ing looks like.

“How do I ex­plain Jus­tice Ka­vanaugh to my daugh­ters?” asked Jennifer Weiner in The New York Times. Watch­ing wrench­ing tes­ti­mony from Blasey Ford was tough enough, but Trump and Repub­li­cans rubbed salt in the wound by turn­ing Ka­vanaugh’s swear­ing-in cer­e­mony into a “vic­tory lap.” GOP Sen. John Cornyn even tweeted a pic­ture of a cel­e­bra­tory glass of cham­pagne with the hash­tag #Beers­forBrett. It’s a sick­en­ing re­minder that for many men, “women’s suf­fer­ing is a joke.” Our cul­tural di­vide has never felt wider, said David French in TheAt­lantic.com. While liberals saw an­other priv­i­leged white man “grasp­ing for power,” conservatives saw a falsely ac­cused hus­band, father, and es­teemed judge “fight­ing for his fam­ily, for his very honor.” This ugly fight opened wounds that won’t eas­ily heal. Democrats may be talking about adding jus­tices if they re­gain the White House and Congress in 2021, said in Bloomberg .com, but “don’t count on it hap­pen­ing.” They’d be more likely to use their po­lit­i­cal cap­i­tal on leg­isla­tive pri­or­i­ties—un­less the five con­ser­va­tive jus­tices over­turn Roe v. Wade and ac­tively seek to dis­man­tle pro­gres­sive leg­is­la­tion on health care and safety-net pro­grams. His­tory shows that a court out of step with the coun­try and Congress nearly al­ways faces a chal­lenge to its le­git­i­macy, said law pro­fes­sor in The New York Times. “If the coun­try moves left in the next few years, as the court moves right, we have the mak­ings for a se­ri­ous col­li­sion.”

A cer­e­mo­nial swear­ing-in at the White House

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