On the surface, the nomination of Judge Brett M. Kavanaugh by President Donald Trump for the U.S. Supreme Court appears normal. Kavanaugh has the credentials. He is a graduate of Yale Law School, a former clerk to retiring Associate Justice Anthony Kennedy, a White House aide for President George W. Bush, and a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.
Liberals are justifiably afraid that Kavanaugh will fulfill President Trump’s promise that he will only nominate individuals for the nation’s highest court committed to overturning Roe v. Wade. Liberal know that Kavanaugh’s confirmation will move the court sharply right not only on women’s rights and reproductive freedom, but also the Affordable Care Act and protections for pre-existing conditions, voting rights, religious liberty, environmental protection, protections for workers and consumers, and gun laws.
Beyond the liberal fear that a second Trump appointment will lock in a hard-right court majority for decades, there is a deeper issue, arguably just as grave. It is a problem of legitimacy that should give pause to conservatives who believe in tradition and who understand that democracies depend upon standards of fair play to survive.
It is one thing if a president sweeps into office with a landslide majority and in his first term has the good fortunate to make not just one but two Supreme Court appointments. This is the reward for being an FDR, Lyndon Johnson, or Ronald Reagan. The ideological balance of the nation’s highest court is an echo of presidential elections and elections have consequences.
But the Trump nomination of Kavanaugh is entirely and egregious different. It comes about after Trump won the Electoral College because of a few thousand votes in three states while having lost the popular vote by nearly 3 million. He then inherited a Supreme Court pick in his first months in office that was hijacked from the prior president of the other party.
Senate Majority Leader McConnell and his Republican colleagues violated both the letter and spirit of the Constitution in the last year of the Obama presidency. The denial of even a hearing for Judge Merrick Garland, President Obama’s nominee in the wake of death of Justice Antonin Scalia, was Machiavellian power politics pure and simple. The Constitution says nothing about waiting for the results of the next election. The result is a “stolen seat” on the court.
In playing to win, no matter the cost, no matter what values and norms are smashed in the process, the GOP revealed an authoritarian streak that violates the country’s most sacred principles. It’s as if the Dodgers stopped play in the Game 7 nightmare of the 2017 World Series, demanded three days of rest for Clayton Kershaw, and then replayed Game 7 with their ace Kershaw as the starting pitcher. Dodger fans wish this could be true, but they know it would be deeply wrong. When you cheat and bend the fundamental rules of the game, the game is rigged.
Trump’s pick of Kavanaugh only tilts the ideological balance of the court because the GOP stole the seat Gorsuch now holds. Trump and McConnell are playing with loaded dice.
From kindergarten, American children are taught to look up to the courts and to believe that judges have a deep respect for and belief in justice, equality before the law, and the rule of law no matter who appointed them to the court. We want the courts, especially the Supreme Court, to represent our better angels. Granting the courts the power of judicial review — to be the final arbiter of what is constitutional and right in our system of separated powers — has helped citizens not to lose faith in the country when the other party wins the electoral battle.
A power-hungry GOP has crumpled the sacred legitimacy of the courts and tossed it in the trash. As a result, the courts will be seen as just another venue of an increasingly partisan politics. The opportunity for President Trump to fundamentally alter the balance on the court for a generation is the gift of McConnell’s foul deed. It is based on the illegitimate seating of Neil Gorsuch on the high court and thus is illegitimate as well. Two wrongs do not make a right. Any four-year-old can tell you that.
Kevin O’Leary is a research fellow at the Center for the Study of Democracy at the University of California, Irvine. He is the author of Saving Democracy.
