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Carol D. Leonnig
A national investigative journalist focused on the White House and the government's responsibility
The indictment of the US Court of Appeals by Judge Brett Kavanaugh and Kavanaugh's denunciation of his political enemies by Judge Brett M. Kavanaugh put the Court in the spotlight as she begins her new term on Monday.
The political underpinnings of the court – the conservative judges appointed by the Republican presidents, the Liberals appointed by the Democrats – are never far from the surface. But judges on both sides strive to point out that their disagreements stem from ideological rather than partisan concerns.
The open war on Kavanaugh left the court more than an empty chair at the end of the bench.
"After that, the public will increasingly feel that it's more of a political than a judicial body," said Benjamin Barton, a law professor at the University of Tennessee, who studies the federal justice system. "For me it will be a disaster for them."
Let's add Jonathan Peters, a professor of media law at the University of Georgia. "The court is a political institution, but to the extent possible, it is essential that judges are – and are considered to be – impartial, trustworthy and above the political melee. Judges are now right to be worried.
Supreme Court Justice Elena Kagan made the same finding late last week when appearing before the UCLA School of Law.
US Supreme Court candidate Brett M. Kavanaugh takes place before a hearing of the Senate Judiciary Committee on Thursday at the Capitol. (Matt McClain / Pool / The Washington Post)
She remained resolutely out of touch with questions about Kavanaugh, but she worried about the public's perception.
"The strength of the court as an institution of American governance depends on people who believe that it has some legitimacy – people who believe that it is not just an extension of the political , that his decision-making, according to the cover in the student newspaper, the Daily Bruin. "If people do not believe that, they have no reason to accept what the court does."
Kavanaugh, a 12-year veteran of the US Circuit Court of Appeals, rejected attempts to call him a political warrior in his first appearances before the Senate Judiciary Committee. "The Supreme Court should never be seen as a partisan institution," he said.
But he left Thursday with his appointment in the balance. "This two-week effort was a calculated and orchestrated political coup, fueled by apparent pent-up anger about President Trump and the 2016 elections, a fear unfairly fueled by my judicial record, a revenge for the Clintons and millions of dollars. people. dollars from outside opposition groups, "he said in what will no doubt be the most enduring broadcast of the audience.
President Trump immediately noted the work of his candidate, calling his remarks "powerful, honest and captivating."
He added in his tweet: "The strategy of seeking and destroying Democrats is shameful and this process has been a total sham and an effort to delay, obstruct and resist."
Other supporters of Kavanaugh said the judge's 45-minute opening statement was exactly what was to be expected of a man who thought his whole career was being undermined by unsubstantiated allegations promoted by Democrats and minority groups. Liberal interest.
"Senators have a choice: support a smear campaign or support Judge Kavanaugh," said Carrie Severino of the Judicial Crisis Network, a key group supporting the candidacy.
But those watching the court speculated on how the testimony was transmitted across the street to the Supreme Court.
The judges are proud to not agree without being unpleasant, said Justin Driver, a law professor at the University of Chicago.
"The goal is to keep disputes away from the personal front and to continue to focus on key legal issues," he said. "I would be completely shocked if a member of the current court thought that Judge Kavanaugh's conduct during Thursday's hearings reflected those standards."
Part of the problem is that Kavanaugh spoke about his political opponents in the service of George W. Bush's White House, as well as his key role in Kenneth W. Starr's investigation of President Bill Clinton.
In reiterating his opposition to Kavanaugh on Friday, Senator Richard J. Durbin (D-Ill.) Noted Kavanaugh's reference to the Clinton.
"This courtesy note in Judge Kavanaugh's remarks may have sparked some enthusiasm in the White House, but it's a sad moment in the history of this committee," Durbin said. .
The closest comparison, of course, came decades ago.
Dennis Burke, a Democratic lawyer on the Senate Judiciary Committee at Clarence Thomas hearings, said he felt a sense of "déjà vu" last week. Both put forward an extremely political, unpredictable and ultimately unflattering Senate appointment process.
"The American public does not spend as much time watching the Senate as in the past few days," Burke said. "People are watching this now and say that it's not a functional process. It's not really about fact-finding or thorough investigation, it's just a political process. Some senators have not even spoken to the American public. They focused on: "How to get to 51?"
Of course, a series of nominees has been confirmed since then, with little controversy over the Kavanaugh process. Senator Lindsey O. Graham (R-S .C.) Stated that the reason was more related to the court than to the candidate.
The replacement of Judge Anthony Kavanaugh by Judge Anthony Kennedy is extremely important because he would have a strong Conservative majority in the field for a generation. Issues such as abortion, affirmative action, LGBT rights and government deference to religious beliefs are at stake.
But Graham warned that he was watching the actions of Democrats and that they were in danger of permanently changing the way judicial appointments were handled.
"There is the process before Kavanaugh, and the process after Kavanaugh," he said.
If Kavanaugh's most important audience was Thursday the president who appointed him, those who analyze the court question the reaction of Chief Justice John G. Roberts Jr.
Kavanaugh's confirmation would place Roberts in the central position of the court, with the ability not only to often determine the outcome of the case, but also to determine the distance and speed with which the law will evolve.
He takes seriously his role as chief justice – the country only has 17 of them – and tries to protect the reputation of the court as an impartial party. Politicians do not make things easier, he said in a 2016 speech.
"When you have a highly political, divisive audience process, it increases the risk that anyone who comes out will be seen in these terms," he said. "If Democrats and Republicans fought so fiercely to know if you will be confirmed, it is natural for some members of the public to think that you need to be identified in a particular way as a result of this process.
"And it's just not like that – we do not work as Democrats or Republicans."
The court record is relatively controversial so far, and some people think the judges would like it to stay that way.
"It's in the DNA of the Chief Justice to act gradually rather than quickly," Kannon Shanmugam, a lawyer at the bar, said in a recent Supreme Court discussion at the Georgetown University Law Center.
With only eight judges last week, the court added only a handful of unconvincing cases.
But sometimes judges are out of the control of judges. Nicole A. Saharsky, a long-serving Washington lawyer who works for Planned Parenthood, said some states have passed abortion-restricting laws that are "downright unconstitutional under the current precedent."
If such a case arose, would the court agree to reconsider the case law or wait? Challenges posed by Trump administration policy changes on undocumented immigrant children and transgender service in the military may require court intervention.
The results could be determined according to eight or nine judges.
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