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Trump's Supreme Court candidate Brett Kavanaugh testifies on September 6 before the Senate Judiciary Committee on Capitol Hill in Washington. (Alex Brandon / AP)
All eyes, at least in Washington, are fighting to confirm Judge Brett Kavanaugh in the United States Supreme Court. The charges of sexual assault against him have blocked his appointment to the Senate Judiciary Committee, where he is waiting like a blocked tropical storm, unable to stand for a confirmation vote.
Until a few days ago, he seemed to be on a clear path, though controversial, towards confirmation. Since the Republicans last year amended Senate rules to require only a simple majority to block a Supreme Court candidate – rather than a qualified majority of 60 senators – the Republicans seemed ready to support Kavanaugh, -being even helped a couple of Democrats to re-election in the red states. Lisa Murkowski (Alaska) and Susan Collins (Maine), the two Republican women of choice, had not yet shown their cards, but their support seemed a strong possibility.
Today, the confirmation of the slip is uncertain – or at least less certain than it was.
The tropical storm is as follows: Professor Christine Blasey Ford has accused Kavanaugh of having sexually assaulted her at a high school party years ago. As a result, Republican Senator and Judicial Committee member, Jeff Flake, said: "They are advancing without any attempt to hear what they have to say, I'm not at the # Easy to vote yes "out of the tightly divided committee.
At the time of writing, the Senate Judiciary Committee and Ford's lawyers negotiate the conditions under which she will appear. It is not yet clear whether the hearing will continue or whether the committee will hurry without it to vote.
How did we get there – and what does it mean for the Senate and for the court?
1. Increasing ideological polarization in Congress has led to more court decisions
The main culprit is the increasingly bitter ideological polarization of Congress – making it difficult to agree on who sits at the highest court in the country and not just in the most obvious way.
Polarization has led Congress to stalemate several times over the past two decades. As Congress is often blocked, the courts become even more important arbitrators and central decision-makers. In the past, Congress set ambiguous language by adopting "technical corrections" to speed up the implementation of a law. Today, polarization precludes any compromise, so that foul language ends up in the Supreme Court – as well as clarifying the meaning of the Affordable Care Act in 2015.
And when the courts intervene, they sometimes ask Congress to fix the problem. That's what happened in 2013 Shelby County c. Holder, in which the Supreme Court invalidated part of the law on the right to vote but invited the Congress to fix the part of the law deemed unconstitutional. Congress was not able to agree on whether or how to proceed.
With the Congress paralyzed, the court plays an increasingly important role in arbitration of difficult and polarizing issues. This makes the court more important for Republicans and Democrats – and makes Senate advice and consent even more contentious.
How important is who sitting on the ground? Consider Decision 5-4 in Bush v. Gore, when Florida was telling his votes to decide the 2000 elections. Five Republican-appointed judges preferred to end the recount and sit down George W. Bush as president; four judges appointed by the Democrats opposed this decision, arguing that the recount could continue. These five judges have no doubt decided this election.
2. The rise of partisanship has shaken the confirmation process
More than ideological disagreements divide the parties. Pure partisanship also uproots the process: your team is for the candidate, so my team is against it – regardless of the policies involved.
In 2013, the Democratic Senate reorganized the rules of the House to allow a majority to kill members of lower court candidate groups. Democrats have justified this very partisan decision in response to widespread opposition from the GOP to Obama's nominees. And in 2016, partisanship was on the agenda when Republicans refused to hold hearings on Merrick Garland, President Barack Obama's candidate to replace Antonin Scalia in the Supreme Court, leaving the seat empty for more than a year . The partisanship was once again responsible in 2017, when Republicans attacked Supreme Court candidates in 2017 for Neil M. Gorsuch to sit in court.
When the loyalties of senators are first and foremost for their party, advice and consent suffers.
These two factors – polarization and partisanship – were at the root of the promised litigation we experienced at Kavanaugh's hearings so far.
3. Here are the mid-term elections
All of this has been complicated by the mid-term elections approach, as Democrats may be able to take control of the Senate, since Trump's extremely weak approval is expected to boost Democrats' voter turnout and eliminate it. for the Republicans. If this happens, Senate Democrats could prevent Trump from putting more Conservatives on the bench, both in the Supreme Court and in the rest of the federal judiciary. It is behind Mitch McConnell's determination to confirm Kavanaugh before November.
4. The #MeToo movement has already mobilized women
This year, there is a fourth factor that turned this tropical storm into a potential tsunami: the #MeToo moment. Women have already been mobilized, in record numbers as candidates – and are likely to come in record numbers as Democratic voters. Friday morning, the edges of Trump against Ford promise to intensify the winds.
This is a huge test for the Republican Senate. Keep in mind that only five of the 21 women are Republican. And it is a challenge for Republicans more generally, since the movement may have begun in part because the president was accused of sexual assault and was publicly charged by 16 women.
The Republicans at first seemed anxious to hold a superficial audience and vote for a vote. But at the time #MeToo, with contested elections in less than two months, this is a very risky strategy.
While this may sound a little dramatic, these contests count for the legitimacy of the Supreme Court. The power of the court comes from a broad support diffused to the institution. When people disagree with court decisions, their support for the court diminishes, making it look more and more like another political institution.
A polarized and partisan confirmation process – with unresolved allegations of sexual assault against a person named for life – could undermine Kavanaugh's legitimacy and that of the court in which he sits.
Read more:
[This is why the Senate should care about Brett Kavanaugh’s time as Bush’s staff secretary]
[It’s hard to find a federal judge more conservative than Brett Kavanaugh]
[Here’s why it took conservatives 50 years to get a reliable conservative majority on the Supreme Court]
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