With the confirmation of Brett Kavanaugh, the Supreme Court of the United States is now a wholly realized threat not just to social and economic progress, but to equal justice under the law. Kavanaugh himself promised that would be the case at the conclusion of the confirmation charade orchestrated by Senate majority leader Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley. The nominee raged against “the left” and imagined that senators who had concerns about allegations of sexual abuse, his lies under oath, and his judicial record were part of “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election.” Now that Kavanaugh has been seated, how can any of us forget the menacing message in his testimony: “What goes around comes around”?
These are more than the idle words of an out-of-control partisan. Because Kavanaugh could occupy the Court into the 2050s, they represent a chilling threat that must be addressed. If Democrats take charge of the House Judiciary Committee in November, they have a duty to examine testimony that former Supreme Court justice John Paul Stevens said rendered Kavanaugh unfit to serve on the high court, along with credible complaints about abuse and evidence that the new justice perjured himself under oath.
It is important for progressives to hold Kavanaugh to account, but that cannot be the end of it. There is a much broader need to come to grips with the challenges posed by a fully corrupted confirmation process and a fully compromised Court. The first response must be a clear-eyed and pragmatic focus on the midterm elections, which are now just weeks away. It is easy—and appropriate—to be angry with Senator Susan Collins, the faux moderate who has never voted against a Republican nominee for the Court. Unlike the sole dissenting Republican, Senator Lisa Murkowski, who described Dr. Christine Blasey Ford’s testimony as “very credible” and took seriously the message of Alaskans who said that Kavanaugh should not be confirmed, Collins provided essential cover for McConnell’s machinations in a shameful floor speech praising the nominee.
Yet Collins is not on the ballot this year. Other Republican senators who aggressively defended Kavanaugh are up for reelection, and several of them—particularly Dean Heller in Nevada and Ted Cruz in Texas—are vulnerable. The focus should be on those races, and on the reelection runs of red-state Democrats who, unlike West Virginia’s calculating Joe Manchin, cast votes of conscience against Trump’s nominee. When the critical test came, North Dakota’s Heidi Heitkamp, Missouri’s Claire McCaskill, and Indiana’s Joe Donnelly did the right thing. If they are reelected in November, the signal will be that standing strong against the president’s bully-boy politics is morally necessary and politically smart. Wins by Democrats in these races have the potential to flip the Senate and put the people who opposed Kavanaugh in charge of the confirmation process going forward. That would be sweet justice.
Shifting control of the Senate is vital, but that’s still an insufficient response; progressives must acknowledge the broader crisis and redouble their efforts to address it. Kavanaugh joins a right-wing activist majority on the Court that extends not from the will of the people but from our broken and dysfunctional politics. He is the fourth member of that majority to be nominated by a president who lost the popular vote. The genius of the American experiment has been its adaptability—much of it achieved by amending a Constitution that the founders knew would need to be changed. Yet the Electoral College lingers as the unreformed remnant of a period in which compromises between slaveholders and wealthy merchants were designed to thwart democracy. Advocates for constitutional amendments to get corporate money out of politics and to guarantee the right to vote—essential responses to the Court’s disastrous decisions in Citizens United v. FEC and Shelby County v. Holder—must add to their agenda the elimination of the Electoral College. They can also work for short-term fixes like the National Popular Vote Interstate Compact, in which states formally agree to cast their electoral votes for the winner of the popular ballot.
Progressives must also make structural reform of the courts a priority. A century ago, presidential contenders like Theodore Roosevelt and Robert La Follette proposed sweeping reforms of the federal judiciary, which was well understood as a reactionary threat. There were calls for legislation and constitutional amendments that would give Congress the power to defend laws that the Supreme Court sought to overturn, and to change the courts themselves with term limits for judges and provisions for the recall of errant jurists. President Franklin Roosevelt tried in the 1930s to expand the Supreme Court so that dinosaur justices appointed in the distant past could not block the New Deal. These calls for reform were dismissed as radical. But history often reminds us that the radicalism of one moment is the common sense of the next. That next moment has come. The awful corruptions of politics and process that put Brett Kavanaugh on the Supreme Court demand the immediate response of a new Senate and the longer-term response of a common-sense movement to reform the federal judiciary.