By Harold Meyerson | Oct 02, 2018
Assume the worst: Let’s posit that within a week, despite the evidence of his abuses when young, his temperament when middle-aged, and his unyieldingly troglodytic beliefs at all times, Brett Kavanaugh is confirmed as a Supreme Court justice. That, of course, would create the first hard-right majority on the Court since 1937—a majority dead-set against modernity, equal rights for women and minorities, and any rights at all for workers. What to do then?
There would still remain one perfectly legal and valid exit ramp from this lowdown circle of hell. In the increasingly likely event that the Democrats take the House this November, the new Democratic majority on the House Judiciary Committee could revisit Kavanaugh’s testimony last week for evidence of deception. Indeed, the senior Democrat on that committee, New Yorker Jerry Nadler—as smart and progressive a congressman as the Democrats have—has already indicated the committee, which he’d be chairing, would do just that.
There is, of course, a kind of testimonial misleading by Court nominees that is standard, legal and all but expected. When asked if they’ll approach issues with an open mind, if their opinions will be empirically based and free from the ideology they’ve adhered to throughout their careers, all judicial nominees swear that that will indeed be how they guide themselves, though that is obviously hardly ever the case. As witnesses, they’re all umpires calling balls and strikes. Once on the bench, however, they put that strike zone on either the left or right side of the plate. They invariably omit that part—where they put the strike zone—from their testimony. That’s normal; that’s not an offense.
But denying the existence of events that actually happened in one’s testimony is another matter altogether. A Democratic House Judiciary Committee would surely delve into that early next year, and if they concluded that in fact Kavanaugh lied to their Senate counterparts during his testimony, they’d have grounds for voting out an impeachment resolution, which a Democratic House would almost surely pass. It’s almost impossible to envision the Senate convicting Kavanaugh—it requires a two-thirds vote, which is to say, Republican support, and given that party’s commitment to anti-empiricism, all evidence will become beside the point—but a House-enacted resolution to impeach would in itself throw the Court into crisis.
First, additional revelations from a House investigation might compel Kavanaugh to resign. Second, were he to stay on the court, the Senate would have to hold a trial (unless, if the Republicans still control the Senate, they refuse to, which would lead to a constitutional impasse that would doubtless have to be decided by, yep, the Supreme Court). Third, whether Kavanaugh could continue to hear and rule on cases while all this was proceeding would be hotly disputed and, again, a matter that the Court would have to decide since there would be no one else who could decide it. Fourth, if after all this Kavanaugh remains on the Court, the legitimacy of its rulings would be questioned as never before in our history, laying the groundwork for the addition of at least two justices to the current nine should the Democrats control the White House and Congress following the 2020 election.
At all events, worse comes to worst, there’s still a Plan B.