Let’s take a quick trip down memory lane, even though this particular event may not live in your memory. But as we sift the mounting wreckage of the Brett Kavanaugh nomination, what happened in 1992 seems quite pertinent.
That year, when the U.S, Supreme Court upheld Roe v. Wade, three of the majority justices were candidly concerned that Americans angered by the ruling might lose faith in the nation’s top judicial institution. They wrote: “The court’s power lies…in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means…The court must take care to speak and act in ways that allow people to accept its decisions on the terms the court claims for them.” In short, “the court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to the nation.”
Ponder those words, then ask yourself whether many Americans will view the high court as legitimate, as having a “principled character” if a credibly accused sexual assailant, a Trumpian partisan who rails about conspiracies plotted by “the Clintons,” is ultimately awarded with a lifetime appointment. And the reverse is true as well. As yourself whether many Americans – on the flip side of the ideological divide – will view the high court as legitimate if (in their view) a stellar conservative candidate is ultimately denied a lifetime appointment thanks to the feminists in cahoots with the Democrats.
It’s obvious by now that Donald Trump has done great damage to a number of institutions – the presidency, the intelligence community, the FBI, the Department of Justice, Congress (overstuffed as it is with spineless Republicans who have no concept of checks and balances) – and it’s no surprise that he would wreak havoc on the Supreme Court by nominating a poster child for white male grievance. Still, some nuance is necessary. The electorate has been grievously polarized for more than generation, and the Supreme Court’s perceived legitimacy has suffered as a result. Trump and his Senate enablers are merely making things worse.
Twelve weeks ago, before Kavanaugh was nominated, Gallup reported that only 37 percent of Americans have “high confidence” in the high court, well below the 56 percent peak recorded twice during Ronald Reagan’s ’80s presidency. Gallup attributes the current low rating to several factors: a general “decline in the public’s confidence in most major U.S. institutions” (with the notable exception of the military), and the shrinkage of a consensus American center. Since the 1990s, Democratic voters’ confidence in the court is strong when their party controls the White House and fills the vacant seats; their confidence plummets when a Republican president fills the seats. Republican voters feel the same way, depending on which party runs the show.
The public mood was relatively sedate back in 1992, when the aforementioned trio of justices – Sandra Day O’Connor, David Souter, and Anthony Kennedy – fretted about legitimacy. The public mood was far more tempestuous in December 2000, when five Republican appointees stopped the Florida recount and awarded the presidency to the popular-vote loser, George W. Bush. Much was written that winter about whether the court had dealt a major blow to its legitimacy; indeed, Republican appointee John Paul Stevens warned in his dissenting opinion that the real loser in the ruling was “the nation’s confidence in the (court) as an impartial guardian of the rule of law.” Confidence in the court soared that winter among grassroots Republicans, but plummeted elsewhere in the electorate.
In 2012, Chief Justice John Roberts was reportedly so sensitized about public perception of the court that he switched his thumbs-down vote on Obamacare, believing that a 6-3 majority would convey more legitimacy. Today, in retrospect, given all that has happened since, his gesture on Obamacare looks downright enlightened.
Here’s what has happened since: After Antonin Scalia’s death opened a seat, Senate Republicans refused to even schedule a hearing for Obama nominee Merrick Garland, holding the seat open for nearly all of 2016, claiming that they wanted to let “the people” decide how the seat should be filled. This was naked partisan politics, an unprecedented act of obstruction. “The people” responded on election day by electing a president who won nearly three million fewer votes than his opponent. Then came Neil Gorsuch, who took Garland’s rightful seat. Then came a hue and cry about the tainted image of the court. Russ Feingold, a former Democratic senator and Judiciary Committee member, warned before Gorsuch’s ascent that his confirmation would set “a dangerous precedent from which the legitimacy of our highest court might never recover.”
Then came the unexpected retirement of Anthony Kennedy; his announcement, this past June, conveniently maximized the prospects of a successor being confirmed by a Republican Senate – urgent timing, given the possibility that Democrats could capture the Senate in November. And that brings us to Kavanaugh, who’s now the subject of an eleventh-hour FBI probe that may or may not be sufficiently comprehensive. If Trump is indeed narrowing (excuse me, rigging) the parameters of this week’s probe, and a narrow probe provides sufficient cover for the GOP’s fence-sitters to vote Yes, that result could sow more hostility toward the court and its future rulings. Although, of course, the MAGA faction would be delighted.
To quote a fellow political analyst, David Wasserman: “A broken Senate will eventually produce a SCOTUS viewed by many as illegitimate.” The optimists among us would contend that our institutions are strong enough to weather any storm, and that this too shall pass. Maybe. But all we can hear right now is the thunder. As the comic team of Laurel and Hardy would probably say to Trump and his Senate minions, “What a fine mess you’ve gotten us into now.”