How to Fight Brett Kavanaugh

How to Fight Brett Kavanaugh

Removing a Supreme Court justice is nearly impossible—but Democrats can still weaken his power.

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The grim reality is that Brett Kavanaugh will almost certainly be sitting on the Supreme Court until the middle of the 21st century. He holds a lifetime appointment in one of the most powerful positions in the American government. There are only three ways to leave the federal bench: retirement, death, or impeachment. At age 54, Kavanaugh is the second-youngest serving Supreme Court Justice, a position more than a few of his predecessors  relinquished only in the ninth decade of life. Retirement or death is, actuarially speaking, far in the future.

Impeachment is still a possibility, especially after The New York Times published a blockbuster report that offered extensive corroboration for a serious allegation that Kavanaugh is guilty of sexual assault. When the Trump administration stampeded Kavanaugh’s confirmation through the Senate last year, credible accusations were leveled against the judge by two women, Christine Blasey Ford (who described a sexual assault when she and Kavanaugh were high school students) and Deborah Ramirez (who claimed Kavanaugh thrust his penis at her face at a party when they were students at Yale). Only Ford was allowed to testify in the Senate hearings. But the Times, correcting the newspaper’s own previous coverage, now found multiple sources supporting Ramirez’s claims. The Times also made clear that the FBI did not fully investigate the Ramirez story—nor another sketchier story from a Yale classmate who claims to have witnessed Kavanaugh committing assault as an undergraduate. (This third story is difficult to evaluate because it comes from a witness, not a victim. The alleged victim has refused to comment on the matter.)

The Times article revived old wounds as it reminded readers of the injustice done to Ford and Ramirez. Ford was allowed to testify, but the same FBI that gave short shrift to Ramirez (despite finding her a “credible” witness) also gave Ford’s claim only the most cursory investigation.

In the wake of the Times report, several Democratic presidential hopefuls rushed in to support impeaching Kavanaugh. “Last year the Kavanaugh nomination was rammed through the Senate without a thorough examination of the allegations against him,” Elizabeth Warren tweeted. “Confirmation is not exoneration, and these newest revelations are disturbing. Like the man who appointed him, Kavanaugh should be impeached.” Julián Castro, Kamala Harris, and Beto O’Rourke also came out in favor of impeachment hearings.

Calls to reopen the investigation into Kavanaugh and possibly impeach him are fully justified on the merits. There’s much about the Kavanaugh nomination that stinks to high heaven. Even beyond the allegations of sexual violence, there remain unanswered questions about the judge’s massive debts, which were mysteriously paid off before he was nominated to the Supreme Court.

Warren’s linkage of impeaching Trump and Kavanaugh is clever—but also suggests why the idea is not likely to get far. Impeachment is not just a legal matter but a political one. As with the presidency, impeachment of judges requires a majority in the House of Representatives and a two-thirds majority in the Senate. This is a high bar to clear, which is why there has only been one Supreme Court justice ever impeached (Samuel Chase in 1805).

The same congressional Democrats who have been so reluctant to impeach Trump, despite the extensive documentation of obstruction of justice found in the Mueller report, are not likely to rush to impeach Kavanaugh. As Matthew Yglesias of Vox argued, “congressional Democrats quietly feel that [anti-Kavanaugh] protestors pushed them too far in opposition in ways that hurt them in senate races, and this plays a big part in explaining why they demobilized mass resistance in 2019.” Actually, the polling evidence shows that more voters were motivated by anti-Kavanaugh feelings than by pro-Kavanaugh sentiment.

But whether grounded on bad reasoning or not, congressional Democrats are skittish about investigating Trump administration corruption. The Republicans, by contrast, are all too eager to defend Trump and Kavanaugh. The same GOP that has remade itself into being Trump’s human shields will also man the barricades on behalf of Kavanaugh. Exceptions like Justin Amash, the former Republican representative who supports impeaching Trump, are too rare to be politically meaningful.

If impeachment is a political long shot, there’s a much more practical solution in court-packing. If the Democrats win the presidency and the Senate, they could push to expand the Supreme Court, so it would have 11 or 13 seats. This move would not only open spaces for more liberal judges but also water down the power of the existing justice who is rightly seen as toxic for reasons similar to Kavanaugh, Clarence Thomas. Kavanaugh is unlikely to be vanquished—but his power can be diluted.

The fact that Kavanaugh’s position is so secure is a major failure of many major American institutions beyond the Republican Party. The FBI and congressional Democrats bear their share of responsibility for failure to investigate.

Nor is the media innocent. Although The New York Times broke the news about Kavanaugh, its handling of the story has been marred by bad presentation. The article was initially promoted by a strange tweet that read, “Having a penis thrust in your face at a drunken dorm party may seem like harmless fun. But when Brett Kavanaugh did it to her, Deborah Ramirez says, it confirmed that she didn’t belong at Yale in the first place.” The paper later deleted this tweet and grudgingly apologized for it.

But the headline and subhead completely buried the news found in the story: “Brett Kavanaugh Fit In With the Privileged Kids. She Did Not. Deborah Ramirez’s Yale experience says much about the college’s efforts to diversify its student body in the 1980s.” This makes the article sound like a sociological sketch, not a hard news article with fresh evidence about credible accusations against a Supreme Court justice. A further problem was that the article didn’t provide enough information about the third allegation to make clear why it remains flimsier than the Ford and Rameriz stories (this was later fixed in a corrected version of the story).

A partial explanation was offered by New York Times Communication, in a series of tweets that said, “The book, ‘The Education of Brett Kavanaugh: An Investigation’ by New York Times reporters Robin Pogrebin and Kate Kelly, is a well-reported and newsworthy account that reveals new details and sheds new light on a matter of significant national interest. The excerpt of the book was published in the Sunday Review, a section that includes both news analysis and opinion pieces. The section frequently runs excerpts of books produced by Times reporters. The new revelations contained in the piece were uncovered during the reporting process for the book, which is why this information did not appear in The Times before the excerpt.”

This is a plausible account of why the article appeared in the Opinion section, but it still doesn’t answer why the headlines weren’t written to emphasize the reporters’ genuine scoops, which were buried far into the article.

It almost seems as if the Times was ashamed of the scoop its reporters had uncovered. And that shame is understandable. After the Times article, America now has to deal with the fact that a man who has two serious allegations of sexual assault against him sits on the highest court in the land. Nor is the political system likely to get him off the bench in the foreseeable future. This is surely an uncomfortable thought—but it’s the reality America now has to live with.

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