On the Left, Eyeing More Radical Ways to Fight Kavanaugh

And just as in the early decades of the 20th century, when a conservative-dominated Supreme Court repeatedly struck down progressive economic policies like child labor and minimum-wage laws leading up to the New Deal fight, Democrats fear that the new majority will systematically crush their achievements — not just hollowing out past gains like abortion rights, but also striking down programs they hope to enact if they regain power, like expanding Medicare or efforts to curb climate change.

.. Lindsey Graham, Republican of South Carolina, said on “Fox News Sunday” that he intended to help House Republicans in swing districts campaign on the issue over the next month, saying their Democratic opponents should be asked whether they supported impeaching Justice Kavanaugh and “Do you want an outcome so badly that you would basically turn the law upside down?”

.. Still, many liberals are quietly looking forward to reviving the fight if they win a House majority and subpoena power, rather than resigning themselves to waiting for a conservative justice to leave the court. The oldest of the five, Justice Clarence Thomas, is just 70.

Many are vowing, for example, to try to uncover more files from Justice Kavanaugh’s time as an official in George W. Bush’s White House in hopes of finding more evidence to support their accusations that he lied under oath about his actions.

.. As soon as Justice Kennedy announced his retirement in June, some liberals began calling for Democrats to prepare to expand the court by two justices when they regain power, permitting a future Democratic president and Democratic-controlled Senate to try to transform the court’s controlling faction from its five Republican appointees to six Democratic ones.

..  Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network, deemed it wishful thinking that Democrats would uncover irrefutable evidence of perjury by Justice Kavanaugh. She said it was “inconceivable” that the Senate would convict and remove him, and warned that even such an effort would damage the rule of law by delegitimizing the court as an institution that stands apart from partisan politics.

.. “Although Roosevelt lost that battle, he eventually won the war by serving three full terms as president and appointing eight of the nine members of the court,”

.. Lee Epstein, a professor at Washington University in St. Louis who studies the judiciary, predicted that Chief Justice John G. Roberts Jr., aware of the danger to the court’s legitimacy, will try to guide it into staying quiet for at least several years.

..  if the five conservatives stick together and severely circumscribe a future Democratic majority’s ability to govern, he wrote, “Democrats will face some difficult questions about whether to try court-packing or other forms of exotic procedural extremism in order to secure the authority to govern.”

In that case, he said, the silver lining for liberals is that Justice Kavanaugh was confirmed, as opposed to being withdrawn and replaced by an untarnished but ideologically similar nominee. The cloud over his presence, Mr. Yglesias predicted, will help the left’s “necessary delegitimization” of the court.

The Supreme Court’s Legitimacy Crisis

the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

.. And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.

.. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

.. Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

.. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.

.. no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.

.. we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

.. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.

.. outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.

.. Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.

Susan Collins, Standing Alone, Makes Her Case for Kavanaugh

Ms. Collins did not derail him.

Instead, she took to the Senate floor Friday afternoon and delivered a reasoned, carefully researched, 45-minute point-by-point defense of her support for Judge Kavanaugh.

.. As for the accusations against him, she said, “In evaluating any given claim of misconduct, we will be ill-served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be.”

.. “Protecting this right is important to me,” said Ms. Collins, who said a two-hour, face-to-face session with Judge Kavanaugh and an hourlong follow-up call, as well as an exhaustive review of his opinions, had persuaded her that he would not overturn Roe v. Wade. “His views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”

In addition to Roe, Ms. Collins said that a close look at Judge Kavanaugh’s decisions indicated that he would not overturn the Affordable Care Act and its protections for pre-existing conditions. Nor, she said, would he be afraid to be a check on the president.

“Judge Kavanaugh has been unequivocal in his belief that no president is above the law,” Ms. Collins said.

.. The one thing you wouldn’t do is destroy Judge Kavanaugh’s life for no good reason.

.. I doubt if I’ll ever hear anybody more courageous in my political life,” said Mr. Graham, adding that if Mr. McCain were present, “he would be your greatest cheerleader.”

.. Mitch McConnell, the Kentucky Republican and majority leader, who was eager to avoid an embarrassing defeat on the nomination, compared Ms. Collins to Margaret Chase Smith, the first female senator from Maine and a figure idolized by Ms. Collins.

.. Ms. Collins had been inclined to support Judge Kavanaugh throughout the process, saying early on — before the accusations of sexual misconduct surfaced — that he seemed highly qualified. Those who know Ms. Collins say she was also worried that if his nomination failed, the next person selected by President Trump could be more conservative and pose an evident danger to abortion rights.

.. said that she believed Dr. Blasey had been the victim of a traumatic attack. However, Ms. Collins said the accusations against the judge could not be corroborated.

.. “Fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard,” she said. “The facts presented do not mean that Professor Ford was not sexually assaulted that night or some other time, but they do lead me to conclude that the allegations fail to meet the more likely than not standard. Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the court.”

.. Ms. Collins said she saw confirmation of Judge Kavanaugh as a way to help rebuild the image of the court.

“Despite the turbulent, bitter fight surrounding his nomination,” she said, “my fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-to-4 decisions and so that public confidence in our judiciary and our highest court is restored.”

Why Brett Kavanaugh Wasn’t Believable

Judge Kavanaugh, when it was his turn, was not laughing. He was yelling. He spent more than half an hour raging against Senate Democrats and the “Left” for “totally and permanently” destroying his name, his career, his family, his life. He called his confirmation process a “national disgrace.”

“You may defeat me in the final vote, but you will never get me to quit,” Judge Kavanaugh said, sounding like someone who suddenly doubted his confirmation to the Supreme Court — an outcome that seemed preordained only a couple of weeks ago.

Judge Kavanaugh’s defiant fury might be understandable coming from someone who believes himself innocent of the grotesque charges he’s facing. Yet it was also evidence of an unsettling temperament in a man trying to persuade the nation of his judicial demeanor.

.. As he put it in his testimony, “What goes around, comes around,” in the partisan vortex that has been intensifying in Washington for decades now. His open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners.

.. He gave coy answers when pressed about what was clearly a sexual innuendo in his high-school yearbook.

He insisted over and over that others Dr. Blasey named as attending the gathering had “said it didn’t happen,” when in fact at least two of them have said only that they don’t recall it — and one of them told a reporter that she believes Dr. Blasey.

.. Judge Kavanaugh clumsily dodged a number of times when senators asked him about his drinking habits. When Senator Amy Klobuchar gently pressed him about whether he’d ever blacked out from drinking, he at first wouldn’t reply directly. “I don’t know, have you?” he replied — a condescending and dismissive response to the legitimate exercise of a senator’s duty of advise and consent. (Later, after a break in the hearing, he apologized.)

.. Judge Kavanaugh gave categorical denials a number of times, including, at other points, that he’d ever blacked out from too much drinking. Given numerous reports now of his heavy drinking in college, such a blanket denial is hard to believe.

.. then there’s the fact that she gains nothing by coming forward. She is in hiding now with her family in the face of death threats.

.. cowardice of the committee’s 11 Republicans, all of them men, and none of them, apparently, capable of asking Dr. Blasey a single question.

.. Eventually, as Judge Kavanaugh testified, the Republican senators ventured out from behind their shield. Doubtless seeking to ape President’s Trump style and win his approval, they began competing with each other to make the most ferocious denunciation of their Democratic colleagues and the most heartfelt declaration of sympathy for Judge Kavanaugh, in a show of empathy far keener than they managed to muster for Dr. Blasey.

.. Pressed over and over by Democratic senators, Judge Kavanaugh never could come up with a clear answer for why he wouldn’t also want a fair, neutral F.B.I. investigation into the allegations against him — the kind of investigation the agency routinely performs, and that Dr. Blasey has called for. At one point, though, he acknowledged that it was common sense to put some questions to other potential witnesses besides him.

.. When Senator Patrick Leahy asked whether the judge was the inspiration for a hard-drinking character named Bart O’Kavanaugh in a memoir about teenage alcoholism by Mr. Judge, Judge Kavanaugh replied, “You’d have to ask him.”

Asking Mr. Judge would be a great idea. Unfortunately he’s hiding out in a Delaware beach town and Senate Republicans are refusing to subpoena him.

.. Why? Mr. Judge is the key witness in Dr. Blasey’s allegation. He has said he has no recollection of the party or of any assault. But he hasn’t faced live questioning to test his own memory and credibility. And Dr. Blasey is far from alone in describing Judge Kavanaugh and Mr. Judge as heavy drinkers; several of Judge Kavanaugh’s college classmates have said the same.

.. If the committee will not make a more serious effort, the only choice for senators seeking to protect the credibility of the Supreme Court will be to vote no.

Don’t Forget Kavanaugh’s First Hearing

the questions raised about Judge Kavanaugh in his first hearing will be submerged by the onrushing tide of scandal, as they were for Justice Thomas.

.. I do think it’s unfortunate that the cynicism and racial politics that infused the nomination of the underqualified 43-year-old Judge Thomas to a lifetime position in the seat once held by Thurgood Marshall has been erased from public memory.

.. It matters that the man President Bush called “the best man for the job on the merits” was unwilling or unable under the senators’ questioning to deviate an inch from his prepared talking points; that although he was a sitting federal appeals court judge (albeit for only 18 months) his knowledge of recent Supreme Court decisions was shaky at best; or that he made the implausible claim that he had never expressed a view, even in conversation, about Roe v. Wade, a precedent that he then voted, in dissent, to repudiate when the opportunity arose during his first year on the Supreme Court bench.

.. who would turn the constitutional clock back to the 18th century if he ever found four colleagues to agree with him, distanced himself during his confirmation hearing from the extreme conservative views he had spent years espousing in speeches. Those were, he claimed, nothing more than the musings of a “part-time political theorist.” Pressed to explain his position that there was a “natural law” higher than the Constitution, he uttered perhaps the most candid line of the entire proceeding: “I certainly never thought I’d be having this discussion.”

.. What were those earlier vulnerabilities? His work for the George W. Bush White House, many details of which have never been fully disclosed. His willingness last year, as a judge, to delay an undocumented teenager’s access to an abortion to which she was legally entitled, along with the not inconsiderable prospect that he would provide the long-awaited fifth vote to overturn Roe v. Wade. More fundamentally, there is the weighty argument that a president who may not have been legitimately elected, and who had already filled a Supreme Court seat that everyone knows was President Barack Obama’s to fill, had not earned the right to project onto the court a minority constitutional vision and lock it in place, probably for decades.

Kavanaugh’s Senate hearing isn’t a trial. The standard isn’t ‘reasonable doubt.’

Kavanaugh’s public hearings, then, and any inquiry now into the accusations against him, are less like a trial and more like a high-stakes job interview — and this job comes with life tenure. The main point of the hearings is to determine the nominee’s fitness for the post. Senators evaluate judicial qualifications, record, demeanor and philosophy. Modern judicial nominees undergo in­cred­ibly thorough vetting in preparation because they know that senators may also explore every aspect of their past. Allegations of sexual misconduct fall well within the scope of relevant considerations. Because guilt or innocence isn’t the issue, but instead fitness for the Supreme Court, the burden of proof isn’t, and shouldn’t be, on Ford, the accuser; it remains on Kavanaugh.

.. it doesn’t mean Kavanaugh must be irrefutably proved to have assaulted her, either. “If there is a doubt,” the late senator Robert Byrd (D-W.Va.) said when he voted against Thomas’s confirmation, “I say resolve it in the interests of our country, its future. Let’s not have a cloud of doubt for someone who will be on the court for many years.”

How Strong Does the Evidence Against Kavanaugh Need to Be?

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.