It was never possible to take seriously everything that Donald Trump’s nominee for the Supreme Court of the United States said under oath. The nominee lied to the U.S. Senate with such frequency that former Senate Judiciary Committee member Russ Feingold said, “Taking all his testimony together, we see a clear pattern emerge: Brett Kavanaugh has never appeared under oath before the U.S. Senate without lying.”
Now that Kavanaugh has been confirmed by a 50-48 vote in the Senate and sworn in as a justice, however, his truthful statements are the ones that could haunt us the most.
Kavanaugh is a political operative. His job in George W. Bush’s White House was to help Karl Rove pack the federal courts with partisan judicial activists. So when Kavanaugh expressed fury at “the left” during his final confirmation hearing, and when he raged against Democrats who dared to challenge his grasping for power, it is safe to say that he meant what he said.
On Thursday, Sept. 27, Kavanaugh appeared before the Senate Judiciary Committee as an enraged man. He did not merely respond to the powerful testimony of Christine Blasey Ford, he condemned everyone who had demanded that he respond. It was an out-of-control performance that unsettled everyone who still takes seriously the notion that our courts should be fair and impartial arbiters.
Unfortunately, the Republican majority in the Senate is not concerned with fairness and impartiality. Along with Kavanaugh, they have a long history of working to politicize the courts. So they gleefully confirmed his nomination.
Sen. Tammy Baldwin joined all but one Democrat in opposing that confirmation, and she did so for the right reason. “Judge Kavanaugh,” she noted, “has proven that he lacks the judicial temperament to serve on America’s highest court and I do not believe he will provide the independence we need on our Supreme Court at this time.”
The Democrat from Wisconsin was not alone in this assessment. Retired Supreme Court Justice John Paul Stevens argued that Kavanaugh’s raging partisanship rendered him unfit to serve on the nation’s highest court.
Despite that warning, the United States now has a Supreme Court justice who believes that he was uniquely targeted by liberal conspirators, asserting that they were “lying in wait” to unleash “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
Kavanaugh told the Judiciary Committee that his critics on “the left” were determined “to blow me up and take me down.” Under oath, he delivered a warning to those who had dared to challenge him: “What goes around comes around.” The hard-right advocate for conservative judicial activism, who was demanding a lifetime sinecure on the highest court in the land, raged on about how: “The consequences will extend long past my nomination. The consequences will be with us for decades.”
Those were chilling words from a nominee. And they are more chilling now that he has been sworn in as a justice who will sit in judgment on the laws enacted by Congresses that may be led by liberals, and who will be in a position to reject requests by progressive groups that want constitutional protections to be applied in a way that guarantees equal protection under law.
Kavanaugh could easily serve on the high court into the 2050s. And Americans have cause to worry. California Sen. Dianne Feinstein, who has served in the Senate for a quarter-century and considered nine Supreme Court nominations, explained as the confirmation vote approached that “never before have we had a nominee display such flagrant partisanship and flagrant hostility at a hearing.” Senate Minority Leader Charles Schumer noted that Kavanaugh had delivered “the bitterest partisan testimony I have ever heard” from a nominee for the bench or for a Cabinet post.
Kavanaugh attempted on the eve of the final deliberations on his nomination to ease fears stoked by his threatening testimony of a week earlier. In an opinion piece written for the rigorously conservative opinion section of Rupert Murdoch’s Wall Street Journal, he tried to argue that he really does understand that “an independent and impartial judiciary is essential to our constitutional republic.” But even as he attempted to defend himself, Kavanaugh acknowledged that — while delivering a written statement and extensively rehearsed answers to questions from the Senate Judiciary Committee — he “might have been too emotional at times” and that he might have “said a few things I should not have said.”
In other words, even in the most serious of circumstances, even in formal settings where decisions are being made about the future of the courts and the country, Kavanaugh admits that he cannot be expected to control his rage at the left.
This goes to the heart of the concern articulated by Justice Stevens, a Republican appointee to the Supreme Court in 1975, who refused to follow a party line during a tenure of almost 40 years as a federal jurist.
Stevens had once praised Brett Kavanaugh. But after the nominee blew up in front of the Judiciary Committee, Stevens recognized that “he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”
“For the good of the court,” said Justice Stevens, “it’s not healthy to get a new justice that can only do a part-time job.”
It is even less healthy to have a justice who might do a full-time job of making sure, in the deliberations and decisions of the Supreme Court of the United States, that “what goes around comes around.”
John Nichols is associate editor of The Capital Times. firstname.lastname@example.org and @NicholsUprising.
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