Sexual assault and excess drinking allegations against Supreme Court nominee Brett Kavanaugh, plus his dissembling about these matters, are important. But Jennifer Rubin of the Washington Post (a conservative, by the way) gets at the heart of why he should not be on the court.
I want to focus on what may be the most significant issue — whether Kavanaugh’s “big reveal” that he is an angry partisan who thinks Democrats conspired to get him — now disqualifies him to sit on any court, let alone the Supreme Court.
The “politicization” of the court, as many call it, didn’t start with Kavanaugh. However, before the parties were entirely polarized and the filibuster destroyed, there was some requirement to reach bipartisan consensus on nominees. The judiciary’s role in vital, hot-button issues has increased, making the Supreme Court seats precious, but the Senate acted as a brake, ensuring that qualified and temperamentally fit people were confirmed. Then the GOP became a right-wing, radical party that eschewed long-held principles such as truth, humility, decorum and respect. Republicans radicalized, and with no filibuster to sift out the political operatives from the judges, we get Kavanaugh’s nomination.
Not to put too fine a point on it, but should not Kavanaugh recuse himself from every case involving a left-leaning group that is part of the conspiracy he decried?
Rubin quotes various legal experts in support. They note how broad the territory on which Kavanaugh’s impartiality may now be questioned.
There’s no good outcome on a court already heavily political.
In other words, we would be expecting a fierce partisan to recuse himself (for excessive partisanship), so the high court wouldn’t appear to be simply a political machine. That’s a poor bet, and even if Kavanaugh recused himself from some cases, each and every Supreme Court decision would come with an asterisk. The Supreme Court’s legitimacy, already fraying, would be decimated. The more than half of the country that didn’t vote for Donald Trump understandably would think the court’s 5-to-4 decisions stemmed from political bias.
This is a man soaked in the Clinton wars, who delivered dozens of speeches thrilling conservative activists at the Federalist Society and now lets on that he harbors rabidly hostile views of the Democrats. It’s inconceivable someone so biased, someone who vowed revenge (“What goes around, comes around,” he shouted), could be elevated to the Supreme Court. And yet, he might.
Kavanaugh’s angry partisanship is a qualification for Donald Trump. Which is, in itself, the biggest disqualification of all.