Kavanaugh’s confirmation as a new Supreme Court justice is a pyrrhic victory for the Republicans. It achieves a solid right-wing majority on court decisions, but reduces the legitimacy of these decisions in the eyes of the public and the legal system.
His ranting attack on the Democrats at the hearing removed all pretence of judicial impartiality – it “pulled the cloak off the Wizard of Oz” as law professor Stephen Gillers put it, shattering public belief in the Supreme Court’s independent authority. It also exposed the supposedly moderate Republican senators who capitulated when Kavanaugh “pivoted to a pure message of aggression, anger and promises to fight the recognized set of political enemies that bind him to his mass and elite supporters … Early Thursday afternoon, Kavanaugh’s nomination was on life support. He went full Trump. And it worked,” Josh Marshall commented. “A scion of the [Washington] beltway political elite who received the country’s finest elite education, he made his name in the Bush White House. He is the epitome of the pre-Trump conservative establishment. Yet we can see here how seamless the transition was to full Trumpism, as it was for all the Republican Senators who rushed to his side after his Thursday afternoon performance.”
The right-wing bias of the court is now decidedly out of tune with the public on many issues, nullifying its role as a moderating bastion of government. The New York Times reported: “Several priorities of the conservative legal movement already conflict with public opinion. The movement’s biggest target is Roe v. Wade, the 1973 decision that identified access to abortion as a constitutional right, yet a poll in July by NBC News and The Wall Street Journal showed an all-time high in public support for the decision, with 71 percent saying that Roe should not be overturned. The conservative wing of the court has also focused on upholding voting restrictions, gerrymanders and purges of the registration rolls. In the 2010 Citizens United decision, the same justices opened the door to a massive amount of spending to influence elections. Polls show, however, that more than 70 percent of Americans don’t like extreme partisan gerrymandering and want to overturn Citizens United.”
The importance of judicial appointments is clear from the pushback of some federal judges against Trump’s immigration laws and the separation of children from parents seeking asylum at the border. For this reason, Senate Republican leader Mitch McConnell has made the justice system a partisan battleground. According to the Washington Post, “he’s been very attuned to the power of the courts and made judges a top priority. He has described the 2016 blockade of Merrick Garland after Antonin Scalia’s death as one of his proudest achievements.” He is ready to push through 30 more lifetime District and Circuit court nominees before November’s mid-terms, though under Senate rules Democrats could delay them.
It is a dangerous moment in US politics because the Republicans have spent the years since Nixon encouraging a racist pushback against civil rights legislation, building an aggrieved and aggressive right-wing base that connected with white supremacist movements in the course of Trump’s election campaign. Josh Marshall sums it up: “The politics of aggression, norm-breaking, the penchant for conspiracy theories, the increasingly explicit white nationalism – these were all present in 2014, 2010 and in a more attenuated form in 2004. What Trump did was, through some malign and impulsive intuition, fuse these together into a workable politics. He took what was still the underbelly of Republican politics, which nevertheless provided it with the bulk of the GOP’s motive force, and made it the face, the brand.”
But what it also poses is how the public can claw back legal protections from state assaults. The guilty verdict on Chicago police officer Jason Van Dyke for killing black teenager Laquan McDonald in 2014 shows a significant shift in public appreciation of state repression of African American youth. A dashcam video showing Van Dyke unloading 16 gunshots into the 17-year-old was allegedly suppressed ahead of the mayoral election in 2015, and mayor-elect Ralph Emanuel, a Democrat, together with the Chicago police department, was accused of overseeing a cover-up. In These Times reports: “In the aftermath of the video’s release, activists staged massive protests across the city, shutting down major business districts and thoroughfares. Soon after, then-Police Chief Garry McCarthy was fired by Mayor Emanuel. And later, States’ Attorney Anita Alvarez lost a high-profile election to reformer Kim Foxx. Last month, Emanuel announced that he will not be seeking re-election for a third term, meaning that the three most prominent officials associated with the alleged cover-up will soon no longer sit in their previous positions of power.”
The release of the video came after strenuous efforts of civil rights lawyers who challenged the city’s right to withhold it for more than a year. Together with civil rights organizers, “community members in and around Chicago refused to let justice die along with McDonald. It was not the notable activists and national leaders we see on television who ensured this story did not end like so many others before. It was the citizens who cared about their community and about justice being done,” writes the executive director for Human Rights Watch, Nicole Austin-Hillery.
Building mass opposition movements is important, but so is the battle for control of the state – as the sustained efforts of right-wing Republicans demonstrate. It has to be fought on all fronts. The Democratic base is furious at Kavanaugh’s appointment, but this has to be directed at mobilizing those who do not usually vote to come out in the November mid-term elections. That could overturn the Republican hold in both the House and the Senate, allowing the possibility of a renewed investigation into Kavanaugh’s misleading testimony and his potential impeachment.