The United States Supreme Court is, by design, a profoundly antidemocratic institution, and as Republicans get ready to ram Brett Kavanaugh’s nomination through the Senate, it’s worth pointing out that it doesn’t have to be this way. In 21 state supreme courts, justices are elected by the people; in 14 others (and in several other democracies), they are selected by a nonpartisan committee. But at the federal level, the Nine are handpicked by the president—an office that Democrats would have won in six of the last seven elections if those elections had been determined by the popular vote. Instead, the Electoral College, hatched in part to protect the interests of the slave states, handed victories to Donald Trump and, with an assist from the Supreme Court itself, George W. Bush—giving us Justices Neil Gorsuch, John Roberts, and Samuel Alito (though not so much Merrick Garland). These ultimate arbiters of our Constitution were confirmed not by the House of Representatives but by the Senate, a body that vastly magnifies the power of small states over those in which most Americans live. And unlike in almost every other democracy in the world—including Canada, Britain, Brazil, and Australia, where justices are required to retire in their early ’70s—US Supreme Court justices serve for life.
Until recently, the uncodified norms of American democracy militated against the most egregious exploitations of this antidemocratic system. When President Ronald Reagan nominated Judge Robert Bork to the Court in 1987, a popular “phalanx of opposition” arose to protest the candidate’s extreme views on civil rights, abortion, and executive power, leading the Senate Judiciary Committee to reject his nomination and the Senate to follow suit by a 58-42 margin, with six Republicans voting nay. In 2005, when President George W. Bush nominated Harriet Miers, his former staff secretary and White House counsel (whose only apparent distinction was her blind loyalty as a partisan hack), howls of derision from both sides of the aisle ultimately forced the White House to withdraw the nomination.
In Kavanaugh, we have a nominee that is every bit as much of a right-wing ideologue as Bork and every bit as much of an apparatchik as Miers (indeed, Kavanaugh succeeded her as Bush’s staff secretary and both worked in the White House Counsel’s Office). And yet, as of press time, not a single Republican senator had so much as hinted that they would vote against his confirmation—and that includes Alaska’s Lisa Murkowski and Maine’s Susan Collins, who have both said they support Roe v. Wade.
How did we get here? As Sarah Posner points out in an investigation for The Nation, since the Bork defeat, a secret network of right-wing activists has spent millions of dollars to place conservative extremists in the judiciary and then shield them from scrutiny, in part by painting criticism of their views on abortion and LGBTQ rights as “anti-religious bigotry.” Kavanaugh is a direct beneficiary of the first part of this strategy, having been preapproved for Trump by the Federalist Society. But it’s worth noting that Republicans have not had to rely on the second part of the strategy, opting instead for maintaining an unprecedented level of secrecy. With a vote imminent, we still don’t have a single document from Kavanaugh’s tenure as Bush’s staff secretary, which might shed light on his views on executive power, torture, and privacy. And we have only a sliver of his records from his days in the White House Counsel’s Office. Those that have emerged suggest that Kavanaugh may have perjured himself in previous hearings and that he is dissembling when he says that he considers Roe settled precedent. Oh, and the documents that have been released to the Judiciary Committee were vetted not by an impartial government archivist but by Bill Burck, a private attorney hired by the George W. Bush Presidential Library who is a friend and former colleague of Kavanaugh’s and has also represented former White House chief of staff Reince Priebus, former Trump strategist Steve Bannon, and current White House Counsel Don McGahn in the Mueller investigation.
With this naked, shameless judicial coup, however, Republicans may have awakened a slumbering beast. Why should any of us accept that an increasingly powerful branch of government is selected in such a manner? As a forum of legal scholars pointed out recently at The Nation, there is nothing in the Constitution that requires the Court to have nine members. Why not 11 or 13? Justices could also be given term limits of, say, 18 years or selected by an impartial committee, as they are in other democracies. If the Senate Republicans have wholly abdicated their constitutional duty to vet Supreme Court nominees in full public view, then the people have every right to take that duty away from them.