The Senate has failed to protect the legitimacy of the court as an institution able to rise above politics by indicating it is acceptable to add to the bench a person who trampled time-honored norms against judges engaging in partisan attacks. It will be largely up to the justices themselves to undercut the taint.
A good start would be for future Justice Brett Kavanaugh to recuse himself from any case about whether President Trump is subject to legal process, the limits (if any) on the presidential pardon power, and the like. Nominee Kavanaugh failed to recognize the uniquely awkward position that his past writings embracing broad presidential immunity and his casting doubt on settled separation-of-powers decisions put him in. Let us hope that Justice Kavanaugh will respond more astutely – and seriously consider the broad range of other recusals necessitated by his broadside attack on “left-wing” groups.
How the other justices participate in oral argument, decide cases, write opinions and otherwise represent themselves and the court can affect whether the blemish of partisan and ideological bias will fade. While providing their best open-minded judgment, the other justices may need to redouble their efforts to show that the court is not just a third political branch of government. Specifically, Chief Justice John G. Roberts Jr., who showed in his Obamacare decision and other ways that he has a fine-tuned concern for the court’s reputation, could act as a force for moderation and even deliver an occasional ruling that defies ideological expectation.
It wouldn’t hurt for the Senate to resolve (at least privately) to prevent such a court-damaging confirmation from being repeated. Structural changes — such as reviving the 60-vote minimum to proceed to a confirmation vote or establishing fixed terms for justices so that appointments are known and anticipated — would also safeguard the court’s vital role in our constitutional democracy. It’s a tall order, and one that requires bold and wise action from those in a position to change things. But crucial and long-term constitutional values are on the line.
Glenn C. Smith is a professor of constitutional and public law at the California Western School of Law and the host of the podcast “Constitutional Context.”