Wednesday, October 3, 2018

Win or lose Kavanaugh nomination creates political dilemmas

Laurence H. Tribe starts counting All the Ways a Justice Kavanaugh Would Have to Recuse Himself should he be seated on the Supreme Court and asks Given his blatant partisanship and personal animosity toward liberals, how could he be an effective member of the Supreme Court? (h/t Jana Eaton)

This one breaks neatly in half. If Kavanaugh does the things required by the Code of Conduct for federal judges and recuses himself from many cases before the court, then he will be possibly a lifetime boat anchor preventing the Court from doing anything more than rendering 4–4 decisions. Alternatively, if he chooses to vote on cases for which he has a conflict, then the Court will deliver 5–4 decisions that are tainted and the public confidence in the court will take another hit. It breaks down to Kavanaugh loses vs. the Supreme Court loses.

Tribe expands.

Much might be said about Judge Brett Kavanaugh’s possible confirmation to the Supreme Court: in terms of his still only partly disclosed professional record, the allegations of sexual assault and his candor, or lack of it, in testifying before the Senate Judiciary Committee.

But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court.

His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament. They disqualify him from participating in a wide range of the cases that may come before the Supreme Court: cases involving individuals or groups that Judge Kavanaugh has now singled out, under oath and in front of the entire nation, as implacable adversaries.

Well before last week’s hearing, public officials and scholars of legal ethics were already debating whether a Justice Kavanaugh, with his unusually expansive views of presidential power, would be required to recuse himself from cases involving the legal fate of the president who nominated him.

This is not an abstract concern: I was a co-author of a Brookings Institution report concluding that conflicts of interest, and the appearance of such conflicts, would be pervasive in cases arising from the special counsel’s inquiry into Russian meddling in the 2016 elections.

The Supreme Court may have to consider questions about whether a sitting president can be indicted or subpoenaed, and what effect pardoning a federal offense would have on state charges for the same conduct — an issue bound up in Gamble v. United States, a double jeopardy case already on the court’s calendar. Many have argued that Judge Kavanaugh should not be confirmed unless he commits in advance to recusing himself from such cases. He has predictably refused to do so.

Judge Kavanaugh’s attacks on identifiable groups — Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons” — render it inconceivable that he could “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, Naral Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.

For a Justice Kavanaugh to participate in internal court discussion or oral argument of such cases, much less vote on their resolution, would involve not just an undeniable appearance of conflict but an actual conflict, given his stated animosities and observation that “what goes around comes around.”

My decades of observing the court’s work and arguing cases there convince me that his required recusal would extend to a very broad slice of the Supreme Court’s docket during his lifetime tenure as a justice. That would leave the court evenly split in far too many cases, for years on end, if he were to recuse himself as required — or deeply damaged in the public’s trust if he were not.

It is up to the president and the Senate to decide whether this situation makes him unacceptable as a nominee. But should he be confirmed, it is impossible to see how Judge Kavanaugh could discharge his responsibilities as an associate justice of the Supreme Court.

…. that is, without violating the Code of Conduct and his own oath.

This conundrum has broader political implications. In just over one month we will have our mid-term election. For quite a while, pundits have been forecasting a “blue wave” in which the Dems take control of the House (at least). Other pundits point to the simmering rage of white males, rage fueled by societal changes beyond their control. More dispassionate observers guess that the election will be decided by which party’s base is hyper-energized and turns out in force.

Damon Linker in This Week explains How Kavanaugh’s downfall would be a disaster for Democrats but it’s more complex. (h/t Jana Eaton for this one also)

In a different political world — one in which both parties acted, despite their ideological disagreements, for the good of the country — the prospect of Brett Kavanaugh’s nomination being withdrawn in the shadow of an FBI investigation into allegations of sexual assault and evidence of lying to the Senate Judiciary Committee would have no discernable political impact at all.

Democrats would be pleased that a man of questionable character had been kept off the Supreme Court. Republicans would be disappointed but eager to move forward with a conservative nominee untainted by scandal. And the country as a whole would feel relieved that we’d all been spared the nightmare of a man credibly accused of sexual violence providing the crucial fifth vote needed to gut the reproductive rights of women.

But of course, we don’t live in such a political world.

In the toxically polarized world in which we’re all unhappy prisoners, all that counts is victory — and the political consequences of wins and losses are often the opposite of what common sense and ordinary decency would predict. To wit: Democrats are dying to derail Kavanaugh’s confirmation. But that victory could well be pyrrhic — and lead to a midterm disaster for Democrats. Indeed, it’s hard to imagine anything that would do more to dampen the party’s prospect of taking control of the House and Senate next month.

Every poll shows Democrats leading on the generic congressional ballot, sometimes by double digits. But what will make the difference between, say, a nationwide popular vote victory of 3 points (which, given gerrymandering and the urban clustering of Democratic votes, might be insufficient to win a majority of seats in either chamber) and 12 points (which should be enough for a comfortable majority in the House and probably a seat or two of cushion in the Senate)?

The answer is turnout — or the relative mobilization of each party’s base.

Ever since Trump’s victory, through numerous special elections and primaries, Democratic turnout has been high. If that continues in November, the party should do well (as the party in opposition to the one that holds the White House usually does in midterm elections). But what will make the difference between Democrats doing well and riding a blue wave (or even a blue tsunami) to political power? Whether very high Democratic turnout is combined with low to middling Republican turnout.

Nothing would do more to motivate grassroots Republican voters to show up at the polls on Nov. 6 than watching Kavanaugh’s nomination collapse less than a month before the vote, with the prospect of Republicans losing their chance to name a staunchly conservative successor to Justice Anthony Kennedy possibly hanging in the balance.

The reverse is true as well. Democratic turnout is likely to be high regardless. But would it likely be higher just after the Dems have helped to sink a Republican nominee to the high court — or after the Republicans forced him through despite the miasma of accusations swirling around him and in the wake his viciously partisan blast against the Democrats during last week’s appearance before the judiciary committee?

The answer is obvious. If Kavanaugh takes a seat on the court just before the midterms, the Republican base will be mollified, but the Democratic base will be furious — and that fury will likely translate into a greater margin of victory at the ballot box.

That’s how politics now plays out — as a perpetually intensifying pendulum swing, with each party’s success inspiring the other party’s stronger reaction, which then provokes an even stronger counter-reaction, and so on, through an endless series of impulsive responses.

The dialectical character of this pattern creates the exceedingly odd spectacle of each side secretly needing and hoping for short-term failures in order to propel longer-term victories. For a Democrat, the prospect of Kennedy being replaced by Kavanaugh is bad. But it might actually help boost the party’s electoral prospects. By the same token, it would be bad for Republicans to lose control of Congress in January, but there’s no doubt that President Trump would be in a stronger position to run for and win re-election in 2020 if he had a Democratic House and Senate to run against.

Combine a sharply polarized electorate with full-on trench warfare and you end up where we are — with each side poised to benefit at least as much by losing as by winning.

That’s why, although most Democratic power brokers would certainly be unhappy to see Kavanaugh take a seat on the court, the prospect of him bowing out in the coming days or weeks probably secretly demoralizes them even more.

I propose a third alternative that might get everyone off the hook. The president could base a decision on how effective (or ineffective) Kavanaugh would be should he be confirmed, basically buying into Laurence Tribe’s analysis. The president would have ample evidence to cite conflicts of interest based on Kavanaugh’s own rhetoric and his evident bias exposed in the Senate Judiciary hearing. The president could then withdraw his nomination in favor of a conservative judge who does not have the same self-inflicted wounds that plague Kavanaugh.

Having said that, my inherent pessimism leads me to suspect that it is too late for backtracking. The politial tribalistic chasm in DC is just too wide and deep. And what I saw of Kavanaugh and his behavior toward the senate last Thursday should give everybody the heebie-jeebies.

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