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Thursday, December 27, 2018

December 27, 2018: The Year in Review: Kavanaugh

[2018 feels like it’s been about ten years in one, but it’s almost done, so this week I’ll AmericanStudy a handful of the biggest stories from the year that was. I’d love to hear your year in review thoughts as well!]
On what’s always been true about the Supreme Court, and what’s frustratingly new.
Back in those halcyon days of February 2016, when none of us (other than federal judgeship completists and his immediate family) even knew the name Merrick Garland yet, I wrote a piece for the Huffington Post on the Supreme Court’s foundational political nature. I’ve learned a lot more about Supreme Court history and precedent in the last couple years, as unfortunately have nearly all of us, but I nonetheless stand by my main point from the piece: that since George Washington and the first nominees to the Supreme Court, that highest judicial body has been tied to, influenced by, and part of the nation’s political concerns and debates. We like to think of the Court as outside of or above politics, and of course the justices’ lifetime appointments do mean that once on the bench they are not as directly tied to immediate political concerns or changes in government or the like (although Clarence Thomas’s various conflicts of interest reflect another kind of definite such tie); but these are human beings, nominated by presidents and confirmed by Congress, and in those and many other ways have always been part of the partisan and political realities of their moments.
What followed Obama’s early 2016 nomination of Garland to that vacant Court seat was nonetheless unprecedented, and set us on a course that has continued to feature uncharted territory in many ways over the nearly three years since (and not at all limited to the Supreme Court, of course). That starts with Senator Mitch McConnell and the Senate GOP holding the seat vacant for the remainder of Obama’s term (nearly a year after the Garland nomination), an action that McConnell erroneously attributed to normal election-year contexts but in reality violated longstanding precedent and norms. They succeeded at holding the seat until the aftermath of Donald Trump’s 2016 election, and then helped Trump usher through his own nominee, Neil Gorsuch, thus ensuring that the seat would be held by an extreme conservative rather than the moderate justice Garland promised to be. The treatment of this seat thus represented a deviation from the Court’s histories on multiple levels, and brought partisan politics into the nomination and confirmation process in a far fuller way than had been the case with prior nominees and justices (which is particularly ironic since McConnell had initially accused Obama of playing politics with the seat and Court, prompting my HuffPost piece in the first place).
Trump’s second Supreme Court appointee, Brett Kavanaugh, reached the Court in a seemingly more traditional manner: a sitting justice, Anthony Kennedy, announced his retirement; Trump nominated Kavanaugh to replace him; and after a contentious confirmation debate the Senate voted to confirm Kavanaugh as the newest Supreme Court Justice. Details that Trump had worked behind the scenes for months with Kennedy to coordinate his retirement were less typical, however, and indicated that this seat was likewise being treated as an entirely political pawn. But it was the confirmation process itself which represented a thoroughgoing break from Court and American history: in the past nominations for the Court or other high offices have been withdrawn for such relatively minor revelations as smoking marijuana (in 1987!) or hiring an undocumented worker as a nanny; whereas Kavanaugh was credibly accused by multiple women of sexual assault, and not only was his nomination not withdrawn but he was confirmed for the nation’s highest Court and one of its highest civic honors. I’m well aware of the echoes of the Clarence Thomas confirmation, but the Kavanaugh accusations are many steps beyond those directed by Anita Hill at Thomas, and reflect one more step in the politicization (and, to my mind, demeaning) of the Supreme Court.
Last reflection tomorrow,
PS. What do you think? 2018 reflections you’d share?

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