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It is easy to answer the question of how Brett M. Kavanaugh will be received by his fellow Supreme Court justices after a historically bitter and tumultuous confirmation battle: as one of the nine equals, with whom they will work for the rest of their career. .
The more difficult question is how months of partisan warfare will affect the image of the court. Can judges convince the public that their split of 5 to 4, composed of conservative judges nominated by Republicans on one side and liberal democratically appointed judges, differs from the 50 to 48 vote in Congress which raised Kavanaugh? ?
[Kavanaugh sworn in as justice after narrow partisan vote]
"Earlier in the hearings, [Kavanaugh] insisted that "the Supreme Court should never, ever be considered a partisan institution," said Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School. "This train left the station. "
While Kavanaugh was preparing for his debut on the bench on Tuesday, the other judges had already moved quickly on the damage.
Liberal Judges Ruth Bader Ginsburg and Elena Kagan joined Conservatives Clarence Thomas and Samuel A. Alito Jr. during Kavanaugh's hasty ceremony to attend a private swearing-in ceremony before Chief Justice John G Roberts Jr. to take the oath.
The disappearance of some colleagues was a matter of time and not of protest.
Judges can thus look like a family: they can criticize themselves severely – at least in confined spaces of legal opinion – but form a solid perimeter when attacks come from outside the marble palace.
"There is a very high standard of sympathy at the Supreme Court, which I think is only getting stronger," said Kermit Roosevelt, a law professor at the University of Pennsylvania. who worked for Judge David Souter, now retired. "I hope that no matter what goes on behind the scenes, we will never know it."
Judge Sonia Sotomayor said that even before the confirmation of Kavanaugh.
"We need to go beyond partisanship in our personal relationships," said Sotomayor during a joint appearance with Kagan at their university, Princeton University.
"We must treat each other with respect and dignity and with a sense of amicability that the rest of the world does not share often."
[The Kavanaugh court is one conservatives have worked decades to build]
It also has a practical aspect, said Roosevelt: "The alienation of your fellow judges carries serious costs.
This would be particularly true for the Liberal judges, of whom Sotomayor and Kagan are two, who could be presumed to be the most affected by Kavanaugh's appointment and confirmation. They simply can not overcome a problem without convincing one of the Conservatives to join them.
Thomas, whose controversial confirmation process in 1991 was the last to polarize the country like Kavanaugh, recalled the words of Judge Byron White when he was finally confirmed:
"It does not matter how you got here. Now, all that matters is what you do here.
As he recounted in his memoirs, Thomas went from a bulletproof vest to his once idiosyncratic legal views adopted by the new tribunal members. Its employees hold prominent positions in the Trump administration and occupy top positions in the country's courts of appeal.
His tense relationship with his former law school, Yale, has been reestablished in recent years, thanks largely to the efforts of the liberal faculty and the school's deans.
The exception to bonhomie for Kavanaugh came from retired Judge John Paul Stevens. Stevens, 98, made the very unusual decision to say that he thought Kavanaugh's angry and moving testimony during a hearing about allegations of sexual assault in adolescence was sufficient to disqualify the Supreme Court Judge.
He also refuted Kavanaugh's comparisons with Thomas, stating that he had served – and had disagreed with – Thomas for years.
"You can not help thinking of Clarence Thomas," said Stevens, "that I do not think that would necessarily be the case with this candidate."
There is no evidence that current members of the court feel this way. Kavanaugh has been a prominent member of the federal judiciary, with 12 years of service at the US Court of Appeals for the DC circuit and links to every member of the court.
He served with Roberts in the George W. Bush administration and defended Roberts' rise to the Supreme Court. Kagan hired her to teach in a class while she was dean of Harvard Law School. Trump's nominee, Neil M. Gorsuch, was also a classmate at Georgetown Prep, a two-year-old junior. Kavanaugh's clerks are regularly hired to the Supreme Court.
But Kavanaugh faces obstacles, even if Thomas did not.
Thomas's hearings "have not managed to become as ugly as this one, nor to be as partisan as this one," said Barry Friedman, a law professor at New York University, who discusses the court and public opinion.
Trump had something to do with it. He imitated Kavanaugh's accuser, Christine Blasey Ford, at a political rally, where there were slogans of "We Want Kavanaugh!"
Thomas, appointed by President George HW Bush was approved by a Democrat-controlled Senate and opinion polls showed that voters were supportive of his appointment, even after accusations of sexual harassment, which he did not believe had been a problem. he denied.
The polls did not show that Kavanaugh supported the majority and his vote was almost exclusively party-oriented. Some Democrats in the House have promised an impeachment procedure for what they consider to be a lie during Senate hearings.
The documents of his service at the White House Bush, which, according to Senate Republicans, are irrelevant to Kavanaugh's confirmation, will be made public at some point.
"I can not imagine that his life stops making bullshit," Friedman said. "He is under a microscope."
And Kavanaugh's own words could cause problems. His reply, claiming that the charges against him constituted revenge on the part of those who did not accept Trump's election in 2016 and that he had been the victim of "revenge on behalf of the Clintons" would come back when he was called to settle politically sensitive cases. (Kavanaugh in a Wall Street Journal editorial said that he had gone too far in some of his remarks, but did not specify which ones.)
Judges generally challenge in cases where they have a conflict involving their family or finances and make the decision themselves. Judge Ruth Bader Ginsburg did not recuse herself in cases involving the Trump administration after making derogatory comments about Trump before the elections, which she should not have make.
Michael McConnell, a former judge at the Federal Court of Appeal and head of the Stanford Center for Constitutional Law, said he did not think Kavanaugh would apologize.
"I do not share the premise that Kavanaugh's anger was out of place," he said. "And I can not imagine the question on which his testimony would require a challenge."
Rhode, a McConnell colleague, said that if Kavanaugh does not challenge in some cases, it will only underscore the system of judges making such decisions on their own.
"Judges rarely recuse themselves because of previous statements, partisan positions or affiliations," she said. "If Judge Kavanaugh continues in this tradition, his participation in cases involving the President or his political opponents, or problems that he has worked on at the White House, will surely raise concerns about his ability to disinterested."
For now, the role of the court does not contain such problems. But the unconstitutionality of partisan gerrymandering, which has major implications for political parties, will be back. Executive power issues are inevitable.
Sometimes the court controls the questions it hears, and sometimes not.
The discretionary part of the role will be an important thing to watch, "said Richard Lazarus, Harvard law professor, who is closely monitoring the court.
"The nature of the legal problems that judges agree to be examined in the near future is perhaps a tell-tale sign," he said.
Speculation has been that the newly revived right side of the court might want to take action that pushes the boundaries, now that more moderate judge Anthony M. Kennedy has been replaced by conservative Kavanaugh, Lazarus said.
"Maybe now these four, including Kavanaugh, could decide that it's prudent for the court, for the good of the nation, to reduce the profile of the court," he said.
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