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The High Court Brought Low

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© Damon Winter/The New York Times

By THE EDITORIAL BOARD, The New York Times

So what now?

The degrading spectacle of Judge Brett Kavanaugh’s confirmation process is behind us; the degrading era of his service on the Supreme Court lies ahead. If senators vote as expected on Saturday, Judge Kavanaugh, with a razor-thin victory on an almost strict party-line Senate vote, will be sworn in as the newest associate justice of the Supreme Court as early as next week.

Credible accusations of sexual assault, lies told under oath, explicitly partisan attacks on the senators trying to assess his fitness to serve: None of it was enough to give Republican leaders more than momentary pause in their campaign to seize decisive control of the Supreme Court.

Depending on your politics, you might pick one starting point or another for the nastiness of the modern battles between the parties over individual court seats. But it was Mitch McConnell, the Senate majority leader, who openly established partisan control of the court itself as the stakes in the struggle. He refused to allow Barack Obama to fill a vacancy for almost a year, holding the seat open to draw evangelical voters to the polls and elect a Republican president.

That was a clever gambit, though it had the downside of risking the credibility of the American legal system. The bet has now paid off, and the risk has been realized.

The president whom Mr. McConnell helped elect turned out to be Donald J. Trump. And while Mr. Trump had plenty of qualified, highly conservative lawyers to pick among, he chose to insist on Judge Kavanaugh. The result was a confirmation process, and now almost certainly a justice, tainted by dishonesty, shamelessness, self-pity, indifference to women’s fears and calculated divisiveness — the hallmarks, in other words, of Mr. Trump’s politics.

Having first sickened the White House and then Congress, the virus of Trumpism is about to spread to the Supreme Court itself.

The Court has had a majority of Republican-appointed justices for nearly half a century, of course, and its credibility has endured, despite controversial decisions like Bush v. Gore, which handed the White House to a Republican president. But the elevation of Judge Kavanaugh represents something new.

The nation is now facing the possibility of three or four decades with a justice credibly accused of sexual assault, one who may well be the deciding vote to overturn Roe v. Wade, or at least make it so hard for a woman to exercise her constitutional right to make her own medical decisions that the ruling is effectively nullified. Thirty to 40 years with a justice whose honesty was tested and found wanting. A justice so injudicious in his manner that thousands of law professors, and a retired Supreme Court justice, opposed his confirmation. A judge is supposed to set personal feelings aside and approach even the most sensitive and emotional matters with a cool disposition and an open mind; Judge Kavanaugh revealed to the country that he was incapable of that.

In saner times, such behavior from a nominee would have sent reasonable Republicans running for the exits. But in the end, only Lisa Murkowski of Alaska had the courage of her convictions. She can go home knowing that she did the right thing.

The task of plugging the holes and patching the rents in the court’s legitimacy now falls to the justices themselves, mainly to Chief Justice John Roberts Jr. He must know that every decision of political significance rendered by a 5-to-4 majority that includes a Justice Kavanaugh will, at the very least, appear to be the product of bias and vengeance. If he cares about the integrity of the court as much as he claims to, the chief will do everything in his power to steer the court away from cases, and rulings, that could deepen the nation’s political divide.

There’s work the rest of us can do as well.

We can, for one thing, find ways in our own workplaces and communities to assure victims of sexual assault that they will be respected if they come forward, even if so many national political figures are dismissive of them.

And if we disapprove of the direction of the courts, we can put the lessons Mitch McConnell taught us to work — and vote.

It’s worth noting that, of the five justices picked by Republicans, including Judge Kavanaugh, four were nominated by presidents who first took office after losing the popular vote. And the slim majority of senators who said they would vote to confirm Judge Kavanaugh on Saturday represent tens of millions fewer Americans than the minority of senators who voted to reject him. The nation’s founders were wise to design the court as a counter-majoritarian institution, but they couldn’t have been picturing this.

Most Americans are not where this Senate majority is. They do not support President Trump. They do not approve of relentless partisanship and disregard for the integrity of democratic institutions. And they have the power to call their government to account.

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Politics - U.S. Daily News: The High Court Brought Low
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