Wednesday, September 26, 2018

Constitutional conservatives should hope Brett Kavanaugh is not confirmed


I don’t know if Brett Kavanaugh once tried to rape somebody.  Only a few people can know, and unfortunately, I can’t trust any of them blindly.  We can support and defend women who come forward about rape allegations in a general sense without being naïve as to the highly unique political circumstances of this allegation in particular.  Enough is at stake that everyone involved has plausible motive to lie or exaggerate.  What’s more, 37 years is enough time that any of those people might sincerely misremember the faces or names or details of what took place.  Kavanaugh is not entitled to a presumption of innocence; likewise, his accuser is not entitled to a presumption of his guilt.  I don’t believe either of them, as I have no reliable information to substantiate either’s testimony. Neither do you.

All I know is that the allegation that Brett Kavanaugh once tried to rape somebody is enough, in the eyes of tens of millions of Americans, to delegitimize his rulings on polarizing legal issues the Supreme Court has to address.  And that’s all I need to know to see that Congress ought not confirm him to that Court.



Constitutional Law is one of the few sets of issues on which I retain conservative sympathies.  I interned for The Federalist Society in college, and the Volokh Conspiracy is on my favorites bar.  I think Citizens United was rightly decided.  I find originalism compelling.  I detest Donald Trump, but I love Neil Gorsuch – that Trump gets to nominate multiple Supreme Court Justices strikes me as the silver lining of his otherwise despicable presidency.  Ideologically, I would probably agree with most of Brett Kavanaugh’s legal rulings.

But more than constitutional conservatism, I care about constitutionalism generally.  The constitution is the only structural restraint on government power.  That makes it pretty dear to my heart, considering I want government to have as little power as possible!  And the Supreme Court is easily the largest of these restraints, with the clearest track record of striking down oppressive laws instead of adding more.  An independent judiciary plays a crucial role in constraining the vices of democracy; in checking the abuses of ambitious leaders; in preventing mob rule; in protecting individuals from the whims of their neighbors; in articulating and enforcing rights.  To me, the constitution is the proudest and most defining feature of American government, and the Supreme Court is the only body capable of keeping it alive.

This urgently important job can only be done under certain conditions.  The Supreme Court has no Army; it relies on the good-faith compliance of the executive branch, in the spirit of respect for longstanding constitutional norms.  Over the course of our nation’s history, the President’s boldness in pushing the limits of Supreme Court rulings has waxed and waned according to circumstance - but ultimately, no President has openly defied a Supreme Court ruling.  For at least the past 80 years or so, the executive has deferred to the Supreme Court’s ultimate authority on legal questions – making it perhaps the only remaining area in which Presidential power is effectively constrained.



But if a President chose to ignore the Supreme Court one day, or Congress or a state government threw down the gauntlet of defiance, nobody quite knows what would happen.  At the very least, it would spark a showdown that disrupts this tepid status quo of executive obedience, and imperiled the legitimacy of the Supreme Court as a constraining body.  Which side prevailed would likely rely in part on the public’s opinion of the institutions competing: elected officials would only back down if the confrontation was making them look bad.

All of this is a roundabout way of saying "like it or not, appearances matter."  The Supreme Court’s ability to effectively constrain the other branches of government depends in part on its reputation as an independent, impartial, above-the-fray panel of experts, who command respect as men and women of intellect and character.

Unfortunately for Brett Kavanaugh, the allegations against him would significantly tarnish that reputation – and therefore degrade the Court’s ability to do its job effectively – whether they’re true or not.


If you doubt me, consider the following hypothetical.  Ruth Bader Ginsberg is 85 years old.  It’s entirely possible she dies before 2020.  It’s also entirely possible Trump wins again in 2020.  If either occurs, conservatives will probably secure a 6-3 edge on the Supreme Court.  That court would not include Merrick Garland – but it would include three justices nominated by a president who lost the popular vote, and (if Kavanaugh were confirmed) two justices accused of sexual impropriety against women (remember the Clarence Thomas/Anita Hill allegations).  And at some point in the next few decades, that court may be asked to relitigate Roe v. Wade – or, short of that, the constitutionality of funding for Planned Parenthood, or on whether the ACA covers birth control, etc.

I don’t use the term “constitutional crisis” lightly, because it’s sensationalist and our country has weathered a lot.  But I don’t think conservatives quite appreciate how scathing the Democrat pushback will be, or how disruptive it will be to the constitutional norms on which the SCOTUS relies, if a court of old conservative dudes accused of rape who the left thinks got there via Republican gamesmanship sides “against women” along party lines on those issues.  The left would literally revolt.  They would not shake hands and say “good game” and just wait 20 years until the Court goes left again; they will launch an attack on the legitimacy of the court that stretches the seams of our constitutional system much further than I’m confident they can hold.  I don’t think the Court will ever overturn Roe – but if they did, a President Kamala Harris might just ignore those rulings and dare the court to do something about it.  Alternatively, she might just pack the Court with 15 justices like Roosevelt tried before. And when that happens, the SCOTUS is officially dead, and so is the constitution I cherish.


The bottom line is that if Republicans care about using the Supreme Court to restrict government power moving forward, they need to tread lightly around the growing hostility my generation seems to have for it.  That Kavanaugh appears, to many, to have a history of violence or disrespect towards women impacts his ability to announce and author court rulings that will be taken seriously by the people of our country. If he is innocent, and this entirely falsified accusation denies him the pinnacle of his professional achievement, that wouldn’t be fair; I’d feel bad for him.  But ultimately, I care much more about the long-term legitimacy of the court that I do about which highly qualified person gets the privilege of serving on it.  There are better, no-less-conservative options that would be healthier for our Republic, and Republicans should pick one of them instead.

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