Conservatives are about to fulfill a quest that began with Richard Nixon’s campaign for president in 1968 and intensified during Ronald Reagan’s presidency: putting a staunch conservative majority on the Supreme Court. But the way that they have accomplished this has greatly tarnished the Court, perhaps irreparably. It is impossible to know the long-term consequences of this, but the Court and how it is perceived will never be the same.
Even if the Democrats gain control of the Senate in November, President Trump is sure to have a nominee confirmed by January, whether it is Brett Kavanaugh or someone just as conservative. This will create the most conservative Court since the mid-1930s, with five justices at the far right of the political spectrum. No longer will there be Republican appointees like John Paul Stevens or David Souter, or even a moderate conservative like Lewis Powell, Sandra Day O’Connor or Anthony Kennedy.
What is stunning is that each of the five conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh or someone like him—came on to the Court in a manner that lacks legitimacy. Each is a disturbing story, but even worse, cumulatively they make it clear that the current Court is little more than an extension of Republican power plays in a way that never has occurred in American history.
In the last few days, there understandably has been much mention of the Clarence Thomas confirmation hearings that occurred in October 1991. What is often forgotten is that before Anita Hill’s allegations of sexual harassment surfaced, Thomas had repeatedly lied to the Senate Judiciary Committee about his views. For example, Thomas said that he had no opinions on the constitutional rights to contraception and abortion even though he had written four different articles saying that Roe v. Wade and Griswold v. Connecticut were wrongly decided. His explanation at his hearings—that someone else wrote them and he just put his name on them—was laughable.
Anita Hill’s compelling testimony of sexual harassment was met by an angry denial by Thomas, quite like that of Kavanaugh to the charge against him of sexual assault. Thomas put it in racial terms, claiming that it was a “high tech linking for uppity Blacks.” The careful research of Jane Mayer and Jill Abramson in their book, Strange Justice: The Selling of Clarence Thomas, left no doubt that Anita Hill’s story was true and that Thomas got confirmed by blatantly lying. Thomas was confirmed by a vote of 52-48, the closest margin of any justice confirmed in American history.
John Roberts and Samuel Alito are on the Supreme Court because of Bush v. Gore, one of the most shameful decisions in Supreme Court history. On December 8, 2000, the Florida Supreme Court ordered that all of the uncounted ballots in Florida be counted. It appointed Judge Terry Lewis to oversee the counting and asked that it be completed by Sunday, December 10. But on Saturday, the Supreme Court stopped the counting and scheduled the case for oral argument on Monday morning.
On Tuesday night, December 12, the Court, in a 5-4 decision split exactly along ideological lines, ordered a permanent end to the counting of ballots in Florida. The Court said that counting the uncounted ballots ran the risk that similar ballots would be treated differently. But there was no evidence that this was likely to occur, especially because Judge Lewis was there to resolve any disputes and be sure that like ballots were treated the same. Moreover, under long established law, the remedy should have been to give the Florida Supreme Court the chance to develop standards to remedy this. But for the first and only time in American history, the Court decided a presidential election and it was the president they anointed, George W. Bush, who appointed John Roberts and Samuel Alito.
Neil Gorsuch is a Supreme Court Justice because of one of the most shameful episodes in the history of the United States Senate. Justice Antonin Scalia died on February 13, 2016, and President Obama nominated Chief Judge Merrick Garland to replace him. Senate Republicans, though, refused to hold hearings or a vote on Garland’s nomination. Garland’s nomination was pending for 293 days, the longest pending Supreme Court nomination in American history. No one questioned Garland’s impeccable qualifications or even that he was a moderate.
Before 2016, 24 times in American history there had been a vacancy in the last year of a president’s term. The Senate confirmed those presidents’ nominees in 21 of these instances and denied confirmation in three of them. But never before had Senators held no hearing and no vote on a nominee because they hoped that their party would gain control of the presidency in the coming election. Democrats always—and rightly—will regard this as a stolen seat on the Supreme Court. If Garland had replaced Scalia, replacing Anthony Kennedy would not shift the ideological balance on the Supreme Court. Even then, Republicans were able to confirm Gorsuch only by changing long-standing Senate rules and abolishing the filibuster for Supreme Court nominations.
Finally, there was Thursday’s spectacle of Brett Kavanaugh saying that, "This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” Kavanaugh was openly contemptuous of the Democratic Senators, refusing to answer questions and often treating them rudely.
No one, though, has offered a scintilla of evidence that Dr. Christine Blasey Ford—or any of the women who have made allegations of sexual harassment or sexual assault—were acting out of partisan motives or part of an “orchestrated political hit.” No previous Supreme Court nominee in history had turned his confirmation into such a partisan event. If the Senate were to confirm Kavanaugh by a 51-49 vote, it would be the first Supreme Court nominee in history approved on purely partisan lines.
If Kavanaugh is confirmed, it will be with a permanent cloud. When matters come before the Court involving political parties and ideology, it is hard to imagine anyone perceiving Kavanaugh as other than he described himself: a conservative Republican who overcame Democratic opposition.
Any one of these events would be a hit on the Court’s legitimacy. But to have the entire majority of the Court there only because of shameful behavior inevitably will tarnish the Court.
It is unclear at this moment how it will matter that the Court will be clearly perceived as an extension of the Republican Party. Maybe it will lead to a crisis of legitimacy for the Court, as occurred in the mid-1930s. Perhaps at some point it will lead to open defiance of the Court. Maybe it will cause the Democrats to try to increase the size of the Court if they have control of the presidency and Congress after the November 2020 elections.
The only thing that is certain is that conservatives will gain control of the Court as they have long desired—in the process, irreparably hurting the institution by the way they have accomplished this.