Brett Kavanaugh’s tenure as a Supreme Court justice will always be tainted by his partisanship, but Democrats will make a big mistake if they insist on re-litigating his controversial appointment with threats of impeachment, unruly protests and ambulance-chasing lawyers.
Kavanaugh’s political background, his conduct during the confirmation and the abysmal process assures he’ll be seen more than any high-court justice in the past half-century as not just a legal conservative but a political operative. This will heighten focus on any of the court’s decisions that have clear political implications, especially any involving President Donald Trump and legal challenges by his administration.
Polls might show Kavanaugh is unpopular with voters, but Democrats have risks, too. Congressman Jerrold Nadler, who’ll be chairman of the House Judiciary Committee if Democrats win the majority in November, says they’ll investigate the possibility of impeachment proceedings, charging Kavanaugh with lying during his confirmation hearings.
But, barring any new hard evidence, this will look like sour grapes, in which Democrats’ best-case scenario would be a partisan House vote on impeachment, the Senate balks and voters revolt - a reprise of Bill Clinton’s 1998 impeachment, of which Kavanaugh was a principal advocate.
Some opponents continue to furiously protest his elevation to the Supreme Court after multiple accusations of sexual assault, which he has denied. Some have taken on shrill and ugly overtones, which are counterproductive.
Sen. Jeff Flake, R-Ariz., was yelled at and called a “coward” for voting for Kavanaugh. Flake, one of the very few Republicans who have stood up to Trump’s behavior and insisted on at least a quick FBI inquiry, is no coward, agree or disagree with his vote. The anger over the choice of Kavanaugh and the process that followed is understandable, but it is better channeled into the November elections and grassroots efforts.
Michael Avenatti, the lawyer for the porn star suing Trump, injected himself into the dispute with a wild charge about Kavanaugh’s youthful indiscretions, harming the judge’s critics by providing talking points to Republicans. Avenatti, an unrelenting publicity hound, vows to keep attacking Kavanaugh as he mulls a presidential run. This is another gift for Republicans.
It is legitimate for Democrats to keep harping on the deep partisan ties this new justice has. Between graduating from law school and his appointment 12 years ago to the U.S. Court of Appeals for the D.C. Circuit, he was on the cutting edge of Republican attack politics. He was prominent in the flawed Ken Starr-led impeachment probe; helped the effort to prevent the Clinton administration from returning a young Cuban child, Elian Gonzalez, to his father in Havana; was deeply involved in the Bush v. Gore Florida recount in 2000; and, as a George W. Bush White House aide, was tangentially involved in the move to stop a husband from allowing his wife, Terri Schiavo, declared brain-dead by doctors, to die.
Prior to joining the Court of Appeals, he was a central player in the movement conservative legal community, forging strong ties to judicial intellectuals at the Federalist Society and political lawyers like current White House counsel Don McGahn. Any Supreme Court decisions affecting Trump personally, or politically charged issues like congressional gerrymandering or voting rights, will highlight these ties.
Kavanaugh compounded this when, infuriated by accusations against him, he charged that it was a conspiracy by Democrats, particularly the Clintons. Then he chose to defend himself via two right-wing venues, a Fox News TV interview and a column in the Wall Street Journal.
One largely bogus issue, seized on by opponents and supporters alike, is whether he’ll supply the vote to overturn Roe v. Wade. You can bet this conservative court won’t formally overturn Roe v. Wade but will instead constantly chip away at abortion rights.
It’s worth remembering that this self-styled populist president has appointed two Supreme Court justices, Kavanaugh and Neil Gorsuch, both sons of affluent lobbyists, who graduated from the elite Georgetown Preparatory School. Trump, who promised to drain the Washington swamp, hasn’t even emptied the Georgetown Prep swimming pool.