Kavanaugh And The Politicization Of The Supreme Court

Published October 2, 2018 at 9:00 AM CDT

People line up at the Supreme Court on the first day of the new term, on Capitol Hill in Washington, Monday, Oct. 1, 2018. Amid the political chaos of Judge Brett Kavanaugh's nomination, the high court's work begins with only eight justices on the bench, four conservatives and four liberals. (AP Photo/J. Scott Applewhite)

Could the Kavanaugh nomination controversy damage the Supreme Court itself? We’ll look at the effect ever-deeper politicization is having on the high court.

Guests

Dahlia Lithwick, courts and law reporter for Slate, and host of the Amicus Podcast. ( @Dahlialithwick)

Stuart Taylor, Author and contributing editor for the National Journal. ( @staylor5448)

Christopher Schmidt, professor of law at the Chicago-Kent College of Law. Legal historian and co-director of the Institute on the Supreme Court of the United States. ( @cwschmidt1)

From The Reading List

Washington Post: “ The Kavanaugh nomination is another big step in the politicization of the Supreme Court” — “The battle over the confirmation of Judge Brett M. Kavanaugh to the Supreme Court marks another significant step in the transformation of the high court into one more polarizing political body. It has been a long time coming. In the climate that exists today, it will not easily be undone.

“The court has never been free from politics, but changes over time have generated the rawest of politics around the court. The names of Robert Bork, Clarence Thomas and Anita Hill, and more recently Merrick Garland, are some of the touchstones on this path. The case of Bush v. Gore, which decided the 2000 election, is another.

“Add the parliamentary actions by former Senate majority leader Harry M. Reid (D-Nev.) and current Senate Majority Leader Mitch McConnell (R-Ky.), which eliminated filibusters for judicial nominations, and we have arrived at this fraught moment in the court’s and the country’s history.”

Slate: “ Fear a Justice Brett Kavanaugh” — “When Thursday’s Senate Judiciary Committee hearing on the nomination of Judge Brett Kavanaugh was over, it wasn’t quite clear what had hit those of us who’d been sitting in the room. The hearing room in Dirksen is tiny, and while the slammed binder and the escalating shouting of the nominee might have looked pretty dramatic on TV, inside the chamber, the effect was that of an out-of-control house party. Too loud, too scary, too close, too real. Like being locked inside something terrible with the music cranked up.

“Anita Hill once told me that, in 1991, Clarence Thomas had race and she had only gender. But now, in 2018, Brett Kavanaugh had rage and Christine Blasey Ford had only gender. With the Senate Judiciary Committee moving on Friday to advance Kavanaugh’s nomination to the full Senate without any further inquiry around Blasey Ford’s damning and plainly credible testimony that Kavanaugh had gleefully and drunkenly sexually assaulted her at a 1982 house party as his buddy Mark Judge watched, it appears as though his rage alone will have been enough to earn him life tenure on the highest court in the land.”

New York Times: “ A Bitter Nominee, Questions of Neutrality, and a Damaged Supreme Court” — “In the first round of his Supreme Court confirmation hearings early this month, Judge Brett M. Kavanaugh kept his cool under hostile questioning, stressed his independence, and exhibited the calm judicial demeanor that characterized his dozen years on a prestigious appeals court bench.

“‘The Supreme Court,’ he said, ‘must never be viewed as a partisan institution.’

“His performance on Thursday, responding to accusations of sexual misconduct at a hearing of the same Senate committee, sent a different message. Judge Kavanaugh was angry and emotional, embracing the language of slashing partisanship. His demeanor raised questions about his neutrality and temperament and whether the already fragile reputation of the Supreme Court as an institution devoted to law rather than politics would be threatened if he is confirmed.”