Three weeks ago, Judge Kavanaugh offered the Senate Judiciary Committee the homilies every nominee is bound to recite: “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. … A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.” It was a firm recitation of the argument that courts are above the grimy business of partisan politics.
Just now, Judge Kavanaugh demonstrated how ludicrous that argument is.
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By appearing with his wife on Fox News on Monday night to defend himself against accusations of sexual misconduct, Kavanaugh threw himself into what Justice Felix Frankfurter called “the political thicket.” He is seeking to rally support for his confirmation in the face of polls showing him to be an increasingly unpopular choice. There was nothing subtle about the choice of venue. Fox News is not only President Donald Trump’s loyal echo chamber during early morning and prime time, but it is also the network whose founder and most popular on-air personality were both fired for repeated acts of sexual misconduct. And it is the network whose former co-president, Bill Shine, now directs communication for the White House.
The striking aspect of this strategy is that is makes no pretense about keeping Kavanaugh outside the boundaries of blatantly partisan political tactics.
Appearing on TV to rebut damaging charges is what candidates for office do. It’s what Richard Nixon did in 1952—with wife, Pat, sitting nearby—to defend himself against charges of financial chicanery and to speak warmly about the family dog, Checkers. It’s what Bill and Hillary Clinton did in 1992 to answer accusations of infidelity. A potential Supreme Court nominee? He or she has another venue, one that Clarence Thomas used to great effect in 1991: the Senate Judiciary Committee, the same forum Judge Kavanaugh will visit on Thursday.
By taking his defense to the news media, Kavanaugh has given an unmistakable acknowledgement that there is no difference between running for office and seeking a lifetime appointment to the federal bench. If there was any doubt about just how far Kavanaugh was prepared to go to achieve his ambition, it was shattered when he shared with Martha MacCallum that “I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter.” (That statement, by the way, does not refute the allegations of Christine Blasey Ford and Deborah Ramirez.)
The only example I can find of a Supreme Court justice, or nominee, defending himself or herself on the airwaves came in 1937, when Justice Hugo Black gave a nationally broadcast radio speech after a newspaper article exposed his membership in the Ku Klux Klan. Even that less than convincing speech came a month after his confirmation.
Kavanaugh’s denials on Fox were emphatic and repeated, often word for word: “I never sexually assaulted anyone—not in high school, not ever.” “I was never at any such party.” So was his determination: “I’m not going anywhere.” Maybe, he suggested, Ford had been assaulted by someone. But it was not him.
Notably, Kavanaugh did not fully push back on the idea, fueled by the recollections of his schoolmate Mark Judge, that he had been part of a hard-drinking crew at Georgetown Prep, which raised at least the possibility that he did not remember his conduct. Yes, there might have been some excessive drinking, but I never blacked out, he said, and as for sexual assault: “I’ve always treated women with dignity.” And don’t forget all those women clerks I hired and the girls’ basketball team I coach.
Perhaps we should not be surprised that Kavanaugh stepped so boldly into the political sphere. The morphing—or descent—of Supreme Court justices from Olympian detachment into politicians has been with us for very long time.
As David Leonhardt of The New York Times put it: “In almost every major decision last term — and many others over the past decade — the justices divided neatly along partisan lines. The five justices chosen by a Republican president voted one way, and the four chosen by a Democrat voted the other. If the justices are umpires, it sure is strange that Republican and Democratic umpires use vastly different strike zones.” The days when Republican presidents sometimes nominated judicial liberals and Democratic presidents chose judicial conservative are long gone.
More and more, with White House political operative shaping their words, Supreme Court nominees offer themselves to senators, and the public, by sharing life stories that make them sound like candidates appealing to voters, rather than judges explaining their jurisprudence.
Clarence Thomas used what the White House dubbed “the Pin Point strategy,” after his hometown in Georgia, evoking his roots as a sign of his empathy. “In 1955, my brother and I went to live with my mother in Savannah,” Thomas told the Senate Judiciary Committee. “We lived in one room in a tenement. We shared a kitchen with other tenants and we had a common bathroom in the backyard which was unworkable and unusable. It was hard, but it was all we had and all there was. Our mother only earned $20 every 2 weeks as a maid, not enough to take care of us. So she arranged for us to live with our grandparents later, in 1955. Imagine, if you will, two little boys with all their belongings in two grocery bags.”
Future justices followed suit. Ruth Bader Ginsburg told the committee: “Neither of my parents had the means to attend college, but both taught me to love learning, to care about people, and to work hard for whatever I wanted or believed in. Their parents had the foresight to leave the old country when Jewish ancestry and faith meant exposure to pogroms and denigration of one’s human worth. What has become of me could happen only in America.”
Justice Alito said: “My father was brought to this country as an infant. He lost his mother as a teenager. He grew up in poverty. Although he graduated at the top of his high school class, he had no money for college. And he was set to work in a factory but, at the last minute, a kind person in the Trenton area arranged for him to receive a $50 scholarship, and that was enough in those days for him to pay the tuition at a local college and buy one used suit. And that made the difference between his working in a factory and going to college.”
Sonia Sotomayor: “My parents left Puerto Rico during World War II. I grew up in modest circumstances in a Bronx housing project. My father, a factory worker with a third-grade education, passed away when I was nine years old. On her own, my mother raised my brother and me. She taught us that the key to success in America is a good education. And she set the example, studying alongside my brother and me at our kitchen table so that she could become a registered nurse.”
Brett Kavanaugh has no such background to offer—his father was a well-connected Washington lobbyist—so he has stressed the public service credentials of himself and his mother. “I vividly remember days as a young boy sitting in the back of my mom’s classroom as she taught American history to a class of African-American teenagers,” he told the committee, adding, “By her example, my mom taught me the importance of equality for all Americans—equal rights, equal dignity, and equal justice under law. … I have spent my career in public service. I have tutored at Washington Jesuit Academy, a rigorous tuition-free school for boys from low-income families. At Catholic Charities at Tenth and G, I serve meals to the homeless with my friend Father John Enzler. In those works, I keep in mind the message of Matthew 25—and try to serve the least fortunate among us.”
All this makes you wonder how Oliver Wendell Holmes, Jr., the son of a New England aristocrat, would ever have made it onto the bench.
How far this path from the majesty of the courthouse to the fever swamps of politics goes is unclear. Will we see future nominees appear at rallies with the president who nominated them? Will nominees appear personally—will they “approve the message”—in TV commercials urging their confirmation? Ads urging a justice’s confirmation already crowd the cable networks.
Nor is it clear whether Kavanaugh’s Fox News appearance will materially change the outcome of his confirmation fight. What does seem likely is that the next Supreme Court nominee who solemnly tells the nation that a judge is like an impartial umpire is going to greeted with howls of bipartisan laughter. The “political thicket” Justice Frankfurter warned about is no longer alien territory to the Supreme Court. It’s now become their briar patch.