Supreme Court

The Kavanaugh Nomination Fight Has Pulled Us Further Into a Partisan Quagmire

The Supreme Court confirmation fight is a preview of things to come.


Sipa USA/Newscom

Senate Republicans are moving ahead with voting on Brett Kavanaugh's Supreme Court nomination; a floor vote could occur as soon as tomorrow.

Is this wise? Necessary? Or just another tactical partisan maneuver in a political era increasingly defined by them? My worry is that there is no good answer, and that because of how both parties have acted, we are hurtling toward a long-simmering crisis of institutional and political legitimacy that can no longer be avoided.

The case for proceeding quickly with a vote following yesterday's sexual assault hearing goes something like this: Kavanaugh and his accuser, Christine Blasey Ford, both gave their testimonies and answered questions, and both came across as human and believable. While some questions remain about both of their stories—Is Kavanaugh being truthful about his teenage drinking? How did Ford get home after the evening in question?—it is likely that further investigation would not reveal much more than we already know, which includes sworn written statements from all the named parties said to be present on the night of the alleged assault. Perhaps Mark Judge, a Kavanaugh friend who Ford alleges was in the room at the time of the assault, could be compelled to testify and offer further details, but he has already denied recalling any such event under penalty of perjury, and if called he would most likely take the fifth, providing no new information. At this point what we know is what we are going to know, and however imperfect our knowledge is, it is all we are going to have. Senate Republicans should schedule a vote, and see what comes of it.

The case for postponing the vote, and perhaps withdrawing Kavanaugh's nomination, is that in fact there is still more we could possibly learn: not only from Judge, but from, say, Ford's parents and family, who have offered just a few terse statements of generic support, and could presumably provide recollections about her as a teenager. With further investigation, we might even learn more from Ford herself, who offered to speak with committee investigators and to sketch a floor plan of the house where she says the assault took place. Without falling down the rabbit hole of Google-maps enabled doppelganger theories, it would then presumably be possible to compare that sketch to the floor plans of the people she says were in attendance, which might provide a little more detail about the location of the alleged event than we have now. Speaking of details, more than a few people have expressed skepticism about Kavanaugh's essentially innocent descriptions of some of the activities noted in his yearbook—"boofing," "devil's triangle," "Renate alumni." And then there is the calendar entry in Kavanaugh's datebook that appears to describe a midsummer night of weekend drinking with friends, who include not only Judge but another individual who was reportedly dating Ford at the time. The prosecutor Republicans brought in to ask their questions touched on this entry briefly at yesterday's hearing—but was then cut off by GOP lawmakers. There are simply too many unanswered questions, too much doubt about what did or did not happen, in this view, to move forward right now.

Compounding the matter are real questions of institutional legitimacy. Republicans spent much of yesterday attacking Democrats for their handling of Ford's story: Ford was connected with her lawyer through Sen. Dianne Feinstein's office prior to the allegations becoming public, Ford was unaware of GOP offers to interview her in California (presumably because her lawyers did not adequately relay that offer), and the eventual leak of the existence of the document that turned out to be Ford's story most likely came from a Democratic source (although both Feinstein and the reporter on the initial story have denied it was her). Because Democrats mishandled the process in a manner designed to confer partisan advantage, many Republicans now argue that they have no choice but to move forward with a confirmation vote; to do otherwise would hand Democrats a victory for playing dirty pool, and to ensure that the nomination process is a poisonous, partisan free-for-all for a generation to come.

The Democratic rejoinder is that Republicans were the ones who escalated the nomination process wars when they refused to hold a vote on President Obama's nominee, Merrick Garland. To move forward now, with so much outrage and uncertainty, would not only put an asterisk by Kavanaugh's name and all his future decisions. Because of the large influence of any single Justice, especially one replacing the Court's longtime swing vote, it would jeopardize the legitimacy of the entire court for years. Perhaps forever.

I find myself at least partially convinced by all of these arguments—and not completely satisfied by any of them. That is precisely the trouble.

Yes, Democrats mishandled Ford's allegation, but now that it is public, their errors shouldn't give Republicans a pass to simply hold a hearing, nod, and then proceed as planned. Yes, Republicans escalated the Senate's procedural cold war with their tactical refusal to vote on Garland, but that doesn't let Democrats off the hook for their own errors, strategic and otherwise. And yes, it would be helpful and good to know more about both Ford's story and Kavanaugh's teenage years, but even if somehow we could, I am not at all sure, based on the bipartisan grandstanding in yesterday's hearing and the overall tenor of the fight so far, that we actually would.

Which is to say that when it comes to Kavanaugh's confirmation, there is no easy way to escape from on-the-one-hand, on-the-other-hand oblivion, no possibility of resolving the matter in a way that most parties deem fair and reasonable. There is no avoiding the presumption of bad faith.

So this will almost certainly be decided on the basis of raw, winner-take-all political power, for its own sake, rather than on anything that resembles an attempt at compromise, and it has already set the stage for many more similarly ugly and degrading showdowns in the future. Regardless of the outcome, Kavanaugh's nomination has pulled our nation further into the quagmire of crude partisan power politics. Welcome to the abyss.