.. 2019, because this looks to be the year of the wolves — the year when savage and previously unimaginable things might happen. It will be a year of
divided government and unprecedented partisan conflict. It will be a year in which
Donald Trump is isolated and unrestrained as never before. And it will be in this atmosphere that
indictments will fall, provoking not just a political crisis but a constitutional one.
There are now over a dozen investigations into Trump’s various scandals. If we lived in a healthy society, the ensuing indictments would be handled in a serious way — somber congressional hearings, dispassionate court proceedings. Everybody would step back and be sobered by the fact that our very system of law is at stake.
We know the language he’ll use. It will be the anti-establishment, anti-institutional language that has been coursing through the left and right for the past few decades: The establishment is corrupt, the game is rigged, the elites are out to get you.
At that point congressional leaders will face the defining choice of their careers: Where does their ultimate loyalty lie, to the Constitution or to their party?
If their loyalty is to the Constitution, they will step back and figure out, in a bipartisan way, how to hold the sort of hearings that Congress held during the Watergate scandal — hearings that inspired trust in the system. They will step back and find men and women of integrity — the modern versions of Archibald Cox, Elliot Richardson and Judge John Sirica — who would work to restore decency amid the moral rot.
On the other hand, if they put party above nation, they will see this crisis as just another episode in our long-running political circus. They’ll fall back in partisan lines. They’ll hurl abuse. Their primary concern will be: How can this help me in 2020?
If that happens, then the roughly 40 percent of Americans who support Trump will see serious evidence that he committed felonies, but they won’t care! They’ll conclude that this is not about law or integrity. It’s just a political show trial. They’ll see there is no higher authority that all Americans are accountable to. It’s just power and popularity straight through.
If that happens, we’ll have to face the fact that our Constitution and system of law were not strong enough to withstand the partisan furies that now define our politics. We’ll have to face the fact that America has become another fragile state — a kakistocracy, where laws are passed and broken without consequence, where good people lay low and where wolves are left free to prey on the weak.
Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him.
.. It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt.
.. The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee.
.. Nominations have failed — that is, been withdrawn or voted down — for various reasons. Sometimes it’s because a majority of the Senate rejects a nominee’s vision of the Constitution and the role of the court. That was the case with Judge Robert Bork, a Reagan nominee whose skepticism about the Constitution’s protection of privacy and liberty convinced a majority of senators that he was simply too conservative and too far out of the mainstream to be confirmed.
Other nominations have been unsuccessful because of private conduct. Another Reagan nominee, Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana use that the F.B.I. had failed to unearth.
And the Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after evidence emerged that as a sitting member of the court, Justice Fortas had also been serving as a de facto adviser to President Johnson, and after questions were raised about the propriety of outside payments he had received while on the court.
.. This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.
.. In this way, the accusations against Judge Kavanaugh are directly connected to his ability to perform the job
.. In an era of meager faith in public institutions (Congress’s approval ratings hover around 17 percent), the relative trust in the court is a striking and important fact. But even more than a heartening fact, it’s critical to the court’s functioning: The public’s perception of the court as legitimate is in many ways the source of its power.
Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.