The Supreme Court's Legitimacy Is on the Brink of Collapse

By Charles Pierce, Esquire

07 October 18

Editor's Note: This article was written prior to Brett Kavanaugh being confirmed by the Senate and sworn in as a Supreme Court justice. AW/RSN

Soon, we will see which senators are complicit in the destruction. No one can hide.

o tell you the truth, were I a U.S. senator, I'd have voted for cloture, too. If the nomination of Brett Kavanaugh had failed on a procedural vote, everybody would have had an easy time being a coward about where they really stood on the idea of putting an accused sex offender, and someone whose contempt for the Senate and for political norms has been manifest, on the Supreme Court for the next three decades.

Now, there will be 30 hours of debate, and then a vote, in which nobody will get to hide. We will get to see how counterfeit those heartfelt concerns of Jeff Flake and Young Ben Sasse really are. We will get to see again that Lisa Murkowski's centrism is real, while we'll get to see how completely artificial Susan Collins's "centrism" really is. We will get to see how utterly reckless Mitch McConnell is in perpetuating the power down through the generations, the Constitution and the republic be damned. We will get to see the steel in Heidi Heitkamp, who has gone all the way out on a very tremulous limb, and we will get to see, finally, what Joe Manchin is willing to sell cheap in order to stay in office.

We will see the true depth of the loyalty the congressional majority has to the developing oligarchy, to its dedication to rolling back the achievements of 20 years of civil rights progress, and to the heedless savage who sits in the White House. This is what United States senators are supposed to do. This, to borrow a phrase from a movie that seems to be coming to life more every day, is the life they have chosen.

What was more compelling than anything that happened in Washington was the emergence of retired Supreme Court Justice John Paul Stevens to bring attention to the most compelling reason not to vote for Brett Kavanaugh. From CNBC:

Speaking to an audience of retirees in Boca Raton, Florida, Stevens, 98, said he started out believing that Kavanaugh deserved to be confirmed, "but his performance during the hearings caused me to change my mind." Stevens cited commentary by Harvard University law professor Laurence Tribe and others suggesting Kavanaugh had raised doubts about his political impartiality when he asserted that sexual misconduct accusations he faced stemmed from an "orchestrated political hit" funded by left-wing groups seeking "revenge on behalf of the Clintons."

Some critics have argued that Kavanaugh's highly partisan remarks so compromised his ability to appear politically fair-minded that he would be forced to recuse himself on many cases to preserve the integrity of court's integrity. Stevens said he, too, has come to believe that Kavanaugh, a U.S. appellate judge, "demonstrated a potential bias involving enough potential litigants before the (high) court that he would not be able to perform his full responsibilities." "I think theres merit in that criticism, and that the senators should really pay attention to it for the good of the court. Its not healthy to get a new justice who can only do a part-time job," Stevens said.

That's the sticking point for succeeding generations. Kavanaugh's entire career prior to being installed in the federal court where he now sits was as a partisan lawyer, the political equivalent of an ambulance chaser. That was the part of him that came out in his now infamous tirade. That was where "revenge for the Clintons" came from. That was where all that business about money from "left-wing opposition groups." What is this guy going to do when one of those groups comes before the Supreme Court as a litigant? And I think we can safely assume that Kavanaugh's definition of "left-wing" is broad enough to included, say, the Sierra Club or the Human Rights Coalition, to say nothing of NARAL or Planned Parenthood.

Stevens said (correctly) that a Supreme Court justice should have the integrity to recuse himself from cases like that. And what if his pronounced deference to executive power comes into conflict with the president* who pushed him onto the Court? Is there anybody who has watched Kavanaugh's performance since his nomination who thinks he actually would step away from cases like that? This is his dream shot, and now he's aflame with vengeance. They're going to have to tie him to his chair to keep him from doing an end-zone dance.

That John Paul Stevens is alarmed should make us all alarmed. His is a voice rich with the past, and not necessarily the distant past, either. He wrote the stunning dissent to the ridiculous opinion in Bush v. Gore. In that dissent, he warned us all that we eventually would come to this point, and that there would be no help left available when we did. He wrote:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

We are there. Now.