WASHINGTON — Justice Brett Kavanaugh’s Supreme Court confirmation was the fiercest battle in a partisan war over the judiciary that has been steadily intensifying since the Senate rejected Judge Robert H. Bork in 1987.
An even greater conflagration may be coming.
“This confirmation vote will not necessarily be the last word on Brett Kavanaugh serving a lifetime appointment on the Supreme Court,” said Brian Fallon, executive director of the liberal group Demand Justice and the top spokesman for Hillary Clinton’s 2016 presidential campaign.
Facing a Supreme Court controlled by five solidly conservative justices, liberals have already started to attack the legitimacy of the majority bloc and discussed ways to eventually undo its power without waiting for one of its members to retire or die.
Some have gone as far as proposing — if Democrats were to retake control of Congress and the White House in 2020 or after — expanding the number of justices on the court to pack it with liberals or trying to impeach, remove, and replace Kavanaugh.
Either step would be an extraordinary violation of constitutional and political norms. No justice has been removed through impeachment. And a previous attempt at court packing, by President Franklin D. Roosevelt after a conservative-dominated Supreme Court rejected important parts of his New Deal initiatives during the Great Depression, is broadly seen as having been misguided.
Either step would also face steep odds. Some Republicans would have to go along for them to work: A court-expansion bill would need the support of 60 senators to overcome a filibuster, and while a simple majority of the House could vote to impeach, removal would require two-thirds of the Senate.
Still, even the political pressure of the threat might make some of the conservative justices more cautious. While Congress rejected Roosevelt’s court-reform bill, the court changed course while lawmakers were considering it and started upholding New Deal laws — a move called “the switch in time that saved nine.”
Today, the majority five on the Supreme Court are all movement conservatives — Republican lawyers who came of age after an ideological backlash a generation ago to decades of liberal court rulings. As judges, they tend to rule more consistently for conservative outcomes than older Republican appointees, including retired Justice Anthony M. Kennedy.
And just as in the early decades of the 20th century, when a conservative-dominated Supreme Court repeatedly struck down progressive economic policies including child labor and minimum-wage laws leading up to the New Deal fight, Democrats fear that the new majority will systematically crush their achievements — not just hollowing out past gains such as abortion rights, but also striking down programs they hope to enact if they regain power, such as expanding Medicare or efforts to curb climate change.
For the next few weeks, many Democratic strategists want to change the subject from the Supreme Court, hoping that Republican voters’ passions aroused by the Kavanaugh fight will fade before the midterm elections. Noting that the election is approaching, Senator Chris Coons, Democrat of Delaware, said on NBC’s “Meet the Press” on Sunday that talk of impeaching Kavanaugh was “premature.”
“Talking about it at this point isn’t necessarily healing us and moving us forward,” he said.
But Senator Lindsey Graham, Republican of South Carolina, said on “Fox News Sunday” that he intended to help House Republicans in swing districts campaign on the issue over the next month, saying their Democratic opponents should be asked whether they supported impeaching Kavanaugh and “Do you want an outcome so badly that you would basically turn the law upside down?”
Still, many liberals are quietly looking forward to reviving the fight if they win a House majority and subpoena power, rather than resigning themselves to waiting for a conservative justice to leave the court. The oldest of the five, Justice Clarence Thomas, is just 70.
Many are vowing, for example, to try to uncover more files from Kavanaugh’s time as an official in George W. Bush’s White House in hopes of finding evidence to support their accusations that he lied under oath about his actions.
“We’re going to get those documents that are shielded from view, and they will provide further proof that he lied,” Fallon said. “And these sexual assault allegations have created a wave of outrage and challenge to the court’s legitimacy that may even eclipse the impact of the lying.”
Because of the Presidential Records Act, any Bush administration files that Republicans refused to seek during the confirmation hearings may remain hard for Congress to subpoena until 2021. But an eventual finding could provide a basis to try to impeach Kavanaugh.
“If a careful examination of the entire scope of his legal history — thus far withheld from the Senate — demonstrates that Mr. Kavanaugh lied under oath, the constitutionally prescribed remedy would be impeachment proceedings,” more than three dozen of the most progressive House Democrats wrote to President Trump urging his withdrawal ahead of the confirmation vote.
The idea of court packing emerged even before Trump nominated Kavanaugh. As soon as Kennedy announced his retirement in June, some liberals began calling for Democrats to prepare to expand the court by two justices when they regain power, permitting a future Democratic president and Democratic-controlled Senate to try to transform the court’s controlling faction from its five Republican appointees to six Democratic ones.
Still, opening that door could lead Republicans to simply expand the court again when the pendulum swung back, continuing the downward spiral.
Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, deemed it wishful thinking that Democrats would uncover irrefutable evidence of perjury by Kavanaugh. She said it was “inconceivable” that the Senate would convict and remove him and warned that even such an effort would damage the rule of law by delegitimizing the court as an institution that stands apart from partisan politics.
“They are speaking out of anger and frustration, and I hope it is not a way most Democrats would like to go. To say, ‘We’re so angry about losing one fight that we basically destroy the entire institution in a fit of pique,’ that is not going to be helpful to anyone,” she said. “I don’t think they would like that to be the standard applied across the board; I opposed Justice Kagan’s confirmation, but I’m not trying to impeach her.”
Indeed, Roosevelt’s court-packing proposal failed to gain support even from his fellow Democrats. Roosevelt should have been more patient, letting the court evolve through elections and natural turnover, William H. Rehnquist, then the chief justice, said in a 1996 speech looking back at that era.
“Although Roosevelt lost that battle, he eventually won the war by serving three full terms as president and appointing eight of the nine members of the court,” Rehnquist said. “This simply shows that there is a wrong way and a right way to go about putting a popular imprint on the judiciary.”
Still, liberals today are increasingly questioning the legitimacy of the process by which several conservative justices won seats on the court, noted Russell Wheeler, a Brookings Institution visiting fellow who studies judicial confirmations. For example, many on the left are still seething at Senate Republicans’ refusal to give a hearing in 2016 to Judge Merrick Garland, President Barack Obama’s last nominee for a vacancy, and consider Justice Neil Gorsuch to be occupying a stolen seat.
“The conservative majority will include four justices who were appointed by presidents who achieved office despite losing the popular vote, and added to that, the percentage of the voting population represented by Senate Republicans reflects a minority of the overall population,” Wheeler said. “And then you have the asterisk next to Justice Gorsuch’s name.”
Lee Epstein, a professor at Washington University in St. Louis who studies the judiciary, predicted that Chief Justice John Roberts, aware of the danger to the court’s legitimacy, will try to guide it into staying quiet for at least several years.
“This could be a terrible moment for the court,” she said. “The Republicans aren’t going to be running government forever, and it could lead to the kind of clash that we had in 1936 with Roosevelt. That was a bad moment for the court and a bad moment for the country.”
Swiftly after Kavanaugh’s confirmation Saturday, Democrats promised they would be watching closely.
“The legitimacy of the Supreme Court can justifiably be questioned,” former attorney general Eric Holder wrote on Twitter. “The court must now prove — through its work — that it is worthy of the nation’s trust.”
In an essay on Vox, progressive political and policy writer Matthew Yglesias also took note of a line of “optimistic” thinking that Roberts, concerned about preserving the court’s popular legitimacy, could serve as a brake on the other four conservatives — as he did when he voted to uphold part of the Affordable Care Act in 2012.
But if the five conservatives stick together and severely circumscribe a future Democratic majority’s ability to govern, he wrote, “Democrats will face some difficult questions about whether to try court-packing or other forms of exotic procedural extremism in order to secure the authority to govern.”
In that case, he said, the silver lining for liberals is that Kavanaugh was confirmed, as opposed to being withdrawn and replaced by an untarnished but ideologically similar nominee. The cloud over his presence, Yglesias predicted, will help the left’s “necessary delegitimization” of the court.