The Danger in the Kavanaugh Vote

If the executive summary of the FBI investigation released by Senate Judiciary Chairman Chuck Grassley accurately captures the underlying FBI findings, it appears that Judge Kavanaugh is on track to be confirmed as the next Supreme Court justice, consistent with what I suggested in my previous post. We may know more regarding how the remaining undecided senators will vote after today’s cloture vote to end debate. If he does get majority support, his confirmation is likely to be on a near-straight party line vote, with most, if not all Senate Democrats voting against him.  It is understandable why they do so, and why Republicans will vote to confirm him.  It also poses potential risks to the future of the Court.

Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault?  Because he is a Republican, and is unlikely to rule in ways on the Court that most Democrats will find acceptable.  In fact, I suspect this fear has been the primary motivation behind Senate Democrats’ opposition all along. Republicans, of course, are motivated by similar political reasoning. However, because it is still viewed as unseemly to defend one’s confirmation vote on partisan reasoning, senators rarely if ever admit to this motivation.  And, in their defense, it is understandable why.  As an unelected body, the Court’s legitimacy depends in part on the fiction that justices are “priests in robes” who impartially decide cases based on legal reasoning and precedent.   As Judge Kavanaugh said in today’s Wall St. Journal op ed piece, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”

But, of course, the Supreme Court is very much a partisan institution, in the sense that justices’ decisions in legal cases seem to generally fall along distinct ideological lines.   This is not always the case, of course, and other factors do influence judges’ decisions, but it happens enough that political scientists can discern clear voting patterns consistent with a certain ideological viewpoint.  Nonetheless, justices like Kavanaugh continue to insist that they vote in a nonpartisan manner.  As my Syracuse Law Professor and former colleague Keith Bybee argues, that hypocrisy serves a valuable function.   By portraying justices as “neutral” umpires who call “ball and strikes” according to some shared, widely-accepted view of the legal strike zone, it is more likely that the Court’s ruling will be accepted by the majority of people.  The alternative – to view judges as naked partisans – would risk delegitimizing the Court, and making it less likely that partisans from the other side will comply with Court edicts.

Alas, this legal fiction is in danger of being stripped away. As the parties have become better sorted, in which ideology increasingly lines up with party labels, we have seen both political parties engage in tactics designed to win popular support in order to gain an ideological majority on the Court.  This has led to increasingly bitter confirmation fights dating back at least to Reagan’s unsuccessful effort to appoint Judge Robert Bork to the highest court. The bruising battle regarding Kavanaugh’s confirmation is but the latest illustration of this trend.  Senators do so for an understandable reason: the Court, as an important political institution whose members sit for life, has the capacity to influence public policy for years to come. As a result it makes perfect sense to base one’s vote according to a justice’s perceived ideology. However, it is even better if a Senator can clothe that support or opposition in some higher principle – it cannot simply be about politics!  Instead, they claim to be voting on a more important issue: “This is a vote against a racially-based high-tech lynching!”  “This is a vote for women everywhere who have been sexually assaulted!”  Much of the opposition to Kavanaugh seems consistent with this approach, even if the logic seems at times somewhat tenuous.  For example, Democrats’ claim that Kavanaugh’s Senate testimony indicates he lacks the proper judicial temperament seems to ignore what his 11-year record on the bench tells about his judicial “temperament.”  Anyone truly interested in assessing this aspect of his demeanor would be combing his actual judicial behavior across the previous decade, rather than basing a conclusion on what he admits was a deeply emotional response to what he perceived to be as unfounded attacks on his family name.  It certainly suggests that Democrats are not really opposing him because of questions regarding his temperament.

To be sure, senators may even convince themselves that this high-minded principle is their primary motivation.  Even if they do not, it makes perfect political sense to adopt this public posture, if for no other reason than to sway public opinion.  The risk, of course, is that if the argument seems increasingly out of step with the facts, or as a blatant political move (see Republican opposition to Merrick Garland) as perceived by the general public (as opposed to activists on both side) the “principled” stand may impose a political cost.  We shall see if either party pays a price in the upcoming midterms.  Early indications are that the Kavanaugh controversy may have energized Republicans, raising their interest in the midterm election to that of Democrats’.

However, there is a bigger worry.  It is that these partisan-driven confirmation battles pose a long-term risk to the Court’s perceived legitimacy.  In that regard, there is some evidence that approval of the Court has declined in the last two decades, at least as measured by survey data.

So far, however, that disapproval has not manifested itself in outright refusal to abide by the Court’s rulings. There is no guarantee that this support will persist in the face of obvious evidence that the Court is, first and foremost, a political institution driven primarily by partisan rulings.   Some veneer of “principled” reasoning is crucial to its continued public support.   Chief Justice Roberts, who is likely to become the new swing vote on the court in closely decided decisions, seems to recognize this and there is some evidence suggesting it has driven his vote when the Court is closely divided.  Is it enough to save the Court’s reputation as an impartial arbiter of constitutional issues?  We shall see.

So far, we remain committed to the belief that we are a government of laws, and not of men and women.  May it always be so.


  1. “Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault? Because he is a Republican”

    That is true for most Senate Democrats but not all. Three Democrats voted for Gorsuch, who is similar to Kavanaugh politically, so it’s safe to say that the sexual assault allegations made the difference.

  2. Perhaps. Or it could be that in replacing Kennedy, Kavanaugh’s appointment will have bigger repercussions for the Court’s rulings than was the case with the Gorsuch appointment who, as Scalia’s replacement, wasn’t likely to have nearly the impact on the Court’s jurisprudence.

  3. Excellent points.

    There are two other structural or contextual factors that are contributing to this being a hyper-partisan confirmation.

    The first is that this nomination is the first in a long time that might change the balance of power on the court, entrenching a conservative majority for decades. In that sense, the stakes are higher than previous confirmations that have not shifted the court median. (Although I agree that institutional legitimacy concerns among the justices, particularly Roberts, are likely to moderate this outcome somewhat).

    The second is that this is the first nomination to occur fully under the nuclear option, with no supermajoritarian constraints. This has led to a change of tactics. Although senators have acted in a partisan manner for some time, this is the first I’ve seen where the nominee appeared partisan, calling the sexual assault accusations a political hit job, mentioning the Clintons, interrupting Democratic senators, etc. This would have been much less likely to occur if Kavanaugh needed Democratic votes for cloture.

    Also, I don’t think concerns about sexual assault allegations or temperament are strictly excuses for partisan behavior. I would argue that they’re in addition to partisanship, but in no way decisive. Democrats (in the Senate and among the public) are *more* opposed to Kavanaugh because of the sexual assault allegations. But they were opposed before. Republicans, likewise, appear to be more fired up about confirming Kavanaugh, and may see the threat of false accusations as a reason to push harder, but were all supportive before.

    Of course, these concerns are inseparably from partisanship. Even if truly felt, they’re likely the result of motivated reasoning, both on the merits of the particular accusations and in terms of the general inclination of liberals to find accusations of sexual assault more concerning than do conservatives.

    Despite partisan origins, people invoke these “non-partisan” arguments more often in the hope that they might convince those wavering in the center. This is particularly true of the temperament argument, which seems to be designed to say that even if we can’t agree on the (uncorroborated) sexual assault allegations, at least we can all agree that his response was unsuited to the Court. You’re correct that a more neutral examination of the question would involve an examination of his judicial record, but it’s notable that this is the argument that’s gained most traction among pundits, and it’s the one to which Kavanaugh himself responded to in an op ed last night.

  4. Jesse – I agree on all points. As I noted in my response to “Tractarian”, Heitkamp, Donnelly and (perhaps) Manchin might be less inclined to support Kavanaugh, despite voting for Gorsuch, precisely because Kavanaugh’s appointment has bigger ideological and partisan implications for how the Court rules in the future than did Gorsuch’s. And as I responded to John in the comments to the previous post, the elimination of the 60-vote cloture threshold allow both parties to nominate more ideologically-extreme candidates since they calculate that it is less likely that they will need opposition party support for confirmation. That leads to more polarized debate, which we are seeing with Kavanaugh. Finally, you are right, I think, that views toward the veracity of Ford and Kavanaugh can’t be separated from partisan leanings; they tend to reinforce those priors, rather than working against them.

  5. Hi, Matthew, sure glad to find your page again. I don’t have time right now to post but the effects of the riots on Evergreen’s enrollment have been substantial (20-30%) and I was wondering about Middlebury.

    Also, I will return and comment on the Judge Kavanaugh imbroglio. It actually is just a battle in a second US Civil War that is going on and has been for decades, imho. Interesting NYT piece today related to that.

    Our core issue, imho, is the toxic inequality in wealth and income that has occurred since 1975. Much more to say about that, too. I even have a proposed partial solution.—x-marks-the_b_7881768.html?imm_mid=0f5cef&cmp=em-business-na-na-newsltr_econ_20170901

  6. Hi Matt, By the time you get this we may have a new Supreme Court Justice but I’ll speak my mine anyway.
    I’m not so much distressed that Kavanaugh is a conservative – knowing full well that a conservative would be put on and we would hope that person would be “reasonable” especially when it came to human rights and social issues, all of which are based so much on religion.
    Right now I’m not sure how he will be because I continue to be “haunted” by his outburst about a political hit job, smear right down to the Clintons. The outrage and anger didn’t bother me, but rather the words I found to be very upsetting – as I have stated before.
    And I am concerned about the sexual harassment issue because we will now have two justices that have been accused of it. Both very conservative. Would I feel better if one of them was a liberal – even out the playing field? – Still bothersome to have that overshadowing the court – that we ended up with two justices with that hanging over the highest court in our country. Just a little unsettling for me.
    I find it all unsettling because there is a part of me that is very concerned about the rights of women and other minorities and how much we may or may not be able to move forward. For example I don’t think Kavanaugh would support overturning Roe Vs Wade but would he back – as is already happening – giving the states more power to make their own decisions to restrict it without actually overturning it? Or would he be part of the court to role back things like same sex marriage by putting the issue back with the states. Not outlawing it but making it harder or unfair. So as I type this I suddenly realize that some of those questions would be there for any conservative judge the President would chose. Well now, that brings me back to why I’m so unsettled about Kavanaugh and I guess I lost what little trust I had in him when he had his outburst (again the words) and the sexual assault issue that certainly makes me feel it was unfinished business, from what little we heard from the FBI as to what they did to find answers.
    I hear if Kavanaugh didn’t get on a worse conservative would get the position. I don’t know about that, but it seems they should have picked somebody that could have gotten at least a couple of democratic votes, somebody that could help us get a little out of those tribal corners. But I guess in today’s climate that may be to much to ask for since both sides seem so stubborn and unmovable.

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