Trump’s poison infects the Supreme Court

The confirmation of Brett Kavanaugh, after a bitter fortnight of operatic intensity, is the most damaging blow to the Supreme Court since it decided a presidential election with Bush v. Gore, and the most serious assault on the court by another branch of government since at least Franklin D. Roosevelt’s court-packing plan. Now what? The episode was a vivid display of a broken process driven by power politics. Senate Republicans employed a razor-thin majority to game the system at every turn. Once Christine Blasey Ford emerged to credibly accuse Kavanaugh of sexual assault when they were teens, Republicans excluded important witnesses and turned a final hearing into a “he said, she said” standoff. Among the indelible images of that standoff were 11 sclerotic Republican males hiding behind a handpicked prosecutor as she served up picayune questions to Ford, and Kavanaugh’s face as he unleashed a torrent of bared-teeth partisanship. Kavanaugh went all in on contempt, grievance and dishonesty — in short, the politics of President Donald Trump. The nadir came when the White House feigned a reopened investigation only to ensure it went nowhere. Where does all this leave Kavanaugh and the Supreme Court? Polls show more Americans believe Ford. The stigma might remain as long as he serves. Kavanaugh’s public appearances will attract protests and controversy. He will continue to be reviled in the legal academy and in much of the profession. And should damning new details of his conduct or the nomination process come to light, the political outrage at his confirmation will redouble. Within the court itself, Kavanaugh will have an easier time. The justices place enormous value on collegiality. He is now their new brother, flaws and all, and whatever private opinions they may harbor, the justices will set them aside and bring him into the fold. The tragedy of Kavanaugh’s sordid confirmation is its effect on the court. Its public credibility is everything; in a sense, it is all the court has. The American people accept the highest court’s decisions to the extent they believe them the product of law, not politics. Between Kavanaugh’s archpartisan turn to gain confirmation and the raw political process that won it for him, the court’s legitimacy will be sorely challenged. Now, every 5-4 decision in which Kavanaugh joins, and there will be a cascade of them, will seem to many more Americans illegitimate. Given the extreme bitterness of the confirmation, it is hard to see this changing soon. Trump has managed to insert himself, and his brand of malice, into the most important institution in American government that he had not yet soiled. Now his poison has infected the Supreme Court, and its venomous effects will persist long after his presidency. Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches at UCLA Law School.