Brett Kavanaugh went after women’s reproductive rights this week, just months after being placed on the US supreme court. He tried to stop the court from blocking a Louisiana law, which would severely restrict access to abortion in the state. He didn’t quite make it, this time, but only because Chief Justice John Roberts was unwilling to overturn the court’s precedent set just two years earlier in a nearly identical case in Texas. But, still, there was Kavanaugh, who shouldn’t have been on the bench in the first place, weighing in. And, that’s a problem.
Without question, the Kavanaugh confirmation hearings were the sub-prime mortgage of US supreme court nominee vetting. The results will likely be equally disastrous.
Similarly, the confirmation process for Kavanaugh was rigged from day one. He was nominated by a president who is an unindicted co-conspirator in a federal crime and needed a Supreme Court Justice who had already argued that the nation’s chief executive “should be exempt from ‘time-consuming and distracting’ lawsuits and investigations.”
Meanwhile, last fall, the Republicans were anxious that the impending “Blue Tsunami” in the mid-term elections just might wipe away Republican majorities in one or both houses of Congress and lead to strengthening voting rights, the Affordable Care Act, and Roe v Wade. To stop that kind of legislation, which is supported by the vast majority of Americans, would require an impenetrable conservative majority on the Court to act as a bulwark. As a result, for the Republican party leadership, there was no rule that could not be invented, ignored, twisted, or lied about to secure that goal.
Yet, in its rush to fill the seat, the Republicans, like eager buyers, ignored warning signals that the House of Kavanaugh was not as solid as it originally appeared. Numerous credible allegations of sexual assault were brought against Kavanaugh. And, of course, there was Kavanaugh’s unforgettable rage-filled partisan opening statement.
Despite all of the warning signs, however, Kavanaugh was still confirmed by the slimmest of margins with Senator Susan Collins, a key swing vote, convinced that he was committed to precedent and “would not vote to overturn Roe v Wade.”
As this spectacle unfolded, it became clear, just like the subprime mortgage fiasco, that our institutions have once again failed the American people. Accountability collapsed under the weight of a party unnecessarily fearful of demographic change. And, equally important, that fear has put the nation at risk.
Someone is now ensconced on the highest court in the land who was not properly vetted. The Republicans glossed over questions about judicial temperament and partisanship, alcohol abuse, sexual violence, perjury, and how hundreds of thousands of dollars in debt accrued and disappeared within a year. It was as if they were looking at an applicant with an 810-credit score, 50% down, and a debt-to-credit ratio that was well within bounds. But once the veneer of girls’ basketball coach, Yale Law, and carpool dad was pulled away, Kavanaugh exuded the telltale signs of a major credit risk on the bench.
We don’t know to whom he actually owed $200,000 and what the source of funds were to pay it off so quickly. We don’t know how a judge can afford a country club fee that’s nearly half his salary. In short, we don’t know who owns him. Because his work with the George W Bush administration during the War on Terror is still locked away in the 93% of documentation that was hidden from the Democrats on the Senate Judiciary Committee, we don’t know if a case involving torture, Guantanamo Bay, or NSA wiretapping would be a conflict of interest because he was somehow involved. We simply don’t know.
What we do know is that his hyper-partisan rant makes Kavanaugh a compromised member on the Supreme Court who would have to recuse himself from a number of cases brought by the very “left-wing opposition groups” he accused of trying to derail him, such as the ACLU, NAACP-Legal Defense Fund, and Planned Parenthood. If Kavanaugh refused to bow out of those cases, especially given his threat that “what goes around comes around,” the Court’s decision would naturally be seen as a vendetta, payback, and, therefore, suspect.
Yet, credibility and trust are absolutely essential for a functioning democracy; essential for governance; and essential for the rule of law. Once the court’s rulings are called into question on basic fundamental grounds of judicial bias, its legitimacy becomes as shaky and threatening to the political system as Wall Street’s alchemy of converting suspect “C” mortgage bonds into “A” rated ones was to the economy.
That didn’t end so well, either.
Carol Anderson is the Charles Howard Candler Professor of African American Studies at Emory University and the author of White Rage: The Unspoken Truth of Our Racial Divide and One Person, No Vote: How Voter Suppression is Destroying Our Democracy. She is also a Guardian US columnist
