Much has been reported – and some of it may actually be true – about the impact newly minted Associate Justice Brett Kavanaugh will have on future Supreme Court decisions. No one can dispute the fact that the philosophic center-of-gravity in the high court will shift a wee bit to the right – but not as much as the political fearmongers claim in their attempt to keep their port-side voting base energized with apocalyptic anxiety.
We have to keep in mind that Kavanaugh is not replacing an activist liberal. Retired Justice Anthony Kennedy was constantly referred to as the swing vote on the Court. That was not really true. While Kennedy did vote with the liberal faction of the Court on a very few cases that had significant cultural implications – abortion and gay rights to mention the most notable two – he was a solid conservative vote on almost all other decisions.
Conversely, Kavanaugh is not an Antonin Scalia or Clarence Thomas. He is a more moderate conservative. In fact, he may very well be more like Kennedy than both the political right and left currently believe.
In this confirmation process, none of those issues that absorbed the media mattered to the Democrats – not Kavanaugh’s broader record of jurisprudence, not his temperament, not the opinions of his supporters or detractors and not even the accusations of Christine Blasey Ford Those were just scenes in the Kabuki political theater. It was all about Roe v. Wade and how to leverage that issue as a winner in the midterm elections.
Opponents of Kavanaugh’s confirmation warned that sending him to the Supreme Court would seriously impair the Court’s reputation and disrupt the comity that exists between the justices, themselves. That is the least likely outcome.
The greater probability is that the eight justices, who had been waiting for the empty ninth chair to be filled, will welcome Kavanaugh with open arms. They are not about to bicker with him over teenage drinking, college hijinks, and braggadocios yearbook entries. They are not about to privately debate or adjudicate the conflicting testimonies of Kavanaugh and Ford.
Rather, Kavanaugh will be respected for his fine legal mind and his judicial eloquence. Even differences of opinion rendered in controversial cases do not break the comity of the Court. It was well known that Justice Ruth Bader Ginsburg on the left and Scalia on the right were the best of friends.
Justices by their nature – and the fact that with lifetime appointments – never get into the political battles of the moment if they do not directly involve the work of the Court. Yes, Ginsburg did have some unkind things to say about President Trump, but she immediately issued a mea culpa for her mistake.
Our Founders were wise in giving federal judges something no one else in America officially enjoys – a guaranteed lifetime job. I say “officially” because Civil Service protection is unfortunately evolving into an absolute job guarantee. Once appointed, federal judges are immune from political repercussions. They cannot be fired by the President who appoints them. They have no term limit. Yes, they can be impeached and removed via the same process that a President can be impeached and removed, but that is a Herculean task and has only happened to one Supreme Court justice – and that was Samuel Chace way back in 1805. He was impeached but acquitted by the Senate.
Apparently ignorant of history and lacking in good political judgment, three are a number of congressional Democrats looking to impeach Kavanaugh should their party gain control of the House. The fact that Republicans are eager to help them promote that strategy should tell them something about its efficacy.
The wake behind Supreme Court confirmation controversies tends to close very quickly. Periodically, the left brings up the Anita Hill testimony during those bygone Clarence Thomas hearings. This issue was long ago and largely forgotten. They have not marred, characterized or impaired Thomas’ service on the Court.
Despite the best efforts of the Democrats to make Trump’s Supreme Court appointments an issue in the midterm elections, it is impossible to know if it becomes a decisive issue for Democrats more than Republicans – or vice versa. Maybe for both. Maybe for neither.
Whatever the political effect, you can rest assured that the Supreme Court will carry on in its normal manner – quiet and secretive – until it issues its decisions. The work of the Court is too tedious and too boring to operate in the fiery cauldron of day-to-day politics. Kavanaugh is now a member-in-good-standing in the highest court in the land.
If the Court can survive such reprobates as racist Chief Justice Roger Taney (Dred Scott Decision), Ku Klux Klaner Hugo Black, school segregationist Chief Justice Fred Vinson and Justice Abe Fortas (resigned due to scandal), it will have no problem with a gentleman of the high caliber and capabilities of Brett Kavanaugh.
As a footnote and in the spirit of partisanship, I am compelled to mention that Kavanagh is a Republican and all those reprobates were Democrats appoint by Andrew Jackson, Franklin Roosevelt, Harry Truman and Lyndon Johnson respectively. So there!