WASHINGTON – For President Trump and for Republicans in the Senate, the ratification of Judge Brett M. Kavanaugh as a judge on the Supreme Court will be a hard-won political victory. But for the conservative legal movement, it's also a signal triumph, the culmination of a decade-long project that began in the Reagan era with the intoxicating goal of achieving a solid majority in the highest court of the nation.
Once Judge Kavanaugh is sworn in, the Supreme Court will be more conservative than ever in modern history. Through some action, "we could move into the most conservative era since at least 1
The new majority is sure to move the law right to countless controversial issues such as abortion, affirmative action, voting and gun rights. And victory is very likely to continue. Judge Kavanaugh, now 53, could serve for decades, and the other conservative judges are young by the standards of the Supreme Court. The older liberals of the court are not. Judge Ruth Bader Ginsburg is 85, and Justice Stephen G. Breyer is 80.
And there will be no swing justice in the form of Anthony M. Kennedy, Sandra Day O'Connor or Lewis F. Powell Jr. who forged alliances with liberals and conservatives. Instead, the court will consist of two different blocs – five conservatives and four liberals.
In other words, the court will perfectly reflect the deep polarization of the American public and political system. The fight to bring Judge Kavanaugh to justice has only broadened that division. The confirmation process was a brawl, and the nomination was enforced by the sheer force of political will. All of this caused collateral damage on the field, causing injury and damage.
It also left Chief Justice John G. Roberts Jr. at a tricky point. He will gain an additional measure of power and occupy the seat in the ideological center of the court, organized by Judge Kennedy, whose retirement in July created the post filled by Judge Kavanaugh. But Chief Justice Roberts may use this power sparingly if he wants to rebuild trust in an institution that has been almost politically discussed for months.
In the long run, however, there is little doubt that Chief Justice Roberts will lead the court to the right. The only question will be the pace of change. "This will be an extremely conservative Supreme Court," said Tracey George, a law professor and political scientist at Vanderbilt University. "Even if Trump is not re-elected and a Democrat is elected, that will not change."
The judges insist that they recognize and apply neutral principles of law without regard to politics. There is enough evidence to the contrary, but the legitimacy of the court is based on public confidence that the court is ultimately not a political institution.
This trust has been tested occasionally, especially in Bush v. Gore, of the 2000 ruling, passed the presidency to George W. Bush. This was a 5-to-4 rule that split along ideological lines. But two Republican appointees were among the dissidents, meaning that the decision might have been political but had not been biased.
Judge Kavanaugh's own statement, infused with fierce attacks on Democrats, undermined public confidence in the court, Stephen Gillers, law professor at New York University
"He has removed the Wizard of Oz's coat ", he said. "The court has its own mystique, and Kavanaugh's conduct at the recent confirmation hearing shook that mystique, and it will be hard for the court to come back."
At a hearing devoted to allegations of sexual misconduct against him , a harsh and angry judge Kavanaugh was disrespectful to the senators who questioned him. He called the allegations "a calculated and orchestrated political success," fueled by "revenge for the Clintons and millions of dollars of money from outside left-wing opposition groups."
That language was a blatant departure from Judge Kavanaugh's legal opinions and his patient and measured answers at his first confirmation hearings before allegations of sexual misconduct had surfaced. It was instead part of his work on Ken Starr's investigation of Bill and Hillary Clinton and, to a lesser extent, his time as an adviser to the Bush White House, both partisan roles.
The charges themselves, which were rigorously denied by Judge Kavanaugh but well received by the public, were a major blow to the moral authority of the Supreme Court, especially given that Justice Clarence Thomas is suing for sexual assault at his own confirmation hearings Harassment was suspended. The court's reputation that a third of its male judges were questioned about sexual misconduct can not help.
The court also faces other challenges, as it can not only be perceived as political, but also as partisan. Judge Kavanaugh will be the fifth member of a solid conservative majority, all appointed by Republican presidents. The members of the four-member liberal wing of the court were all appointed by Democrats.
This partisan cleavage is a fairly new phenomenon, said Lawrence Baum, political scientist at Ohio State and author of "The Company They Keep: How Partisan Divisions Comes to the Supreme Court," which will be released next year. "
The fact that the ideological lines have coincided with the party lines since 2010 has given the court a more political party character, "said Professor Baum
Justice Kennedy was a moderate conservative who occasionally, in large cases, divorced social issues from the liberal wing of the Party There is little reason to believe that a judiciary would forge similar coalitions with Kavanaugh.
"Kavanaugh will clearly move the court in a conservative political direction," said Geoffrey R. Stone, law professor at the University of Chicago. "The most obvious issues affected by his appointment are T such as abortion, affirmative action, and the rights of gays, lesbians, and transgender persons. "
Professor Stone was one of more than 2,000 law professors who signed a letter confirming that Judge Kavanaugh" did not show the impartiality and the court temperament
There is little chief justice that Roberts can do to counteract the partisan impressions of the ratification process, Professor Gillers said. "The best thing for the court as an institution is to go on as if it had never happened," he said.
Chief Justice Roberts could take a step to minimize controversy. If he is in the majority he is 90 percent of the time, he decides which justice the majority opinion will write. It will be surprising, for example, if he assigns Judge Kavanaugh a case about sexual harassment.
Confirmation hearings could affect the relationship between the Chief Justice and his new colleague in other ways, Neal Devins, a law professor at William & Mary and the other author of "The Company They Keep."
"Before the insults, one can well imagine that Kavanaugh is an intellectual leader who could mold the doctrine as Scalia formed the doctrine, He said to Judge Anton Scalia, who died in 2016. But after the allegations, Professor said Devins: "Chief Justice Roberts may be more opposed to taking those positions because he fears that the court is seen as very biased and politicized.
Following earlier cracking confirmatory battles – when Judge Robert H. Bork was rejected by the Senate in 1987, leading to the nomination of Justice Kennedy, and as Justice Th Omas was barely confirmed in 1991 – the court's reputation was hit hard.
"There was a lingering effect on the court's attitude," said Professor George, "but it did not take long."
There is a wild card in the digital age that can produce a more permanent effect this time, She adds: "Video clips can live online forever." People share pictures of him at the hearing, where he looks belligerent and certainly does not look judged, "said Professor George, referring to Judge Kavanaugh, not to mention a devastating one Depiction of him in "Saturday Night Live," which has been seen on YouTube 20 million times.
Some commentators have argued that Judge Kavanaugh a us many types of cases, including the cases of Mr. Trump, Democrats and liberal interest groups. This view is not widely shared by experts in legal ethics.
"I do not think the risks of rejection are very high," said Professor Gillers. "He has made wide accusations against large, undifferentiated groups of people, and I do not believe that any member of these groups could have reasons to disqualify him – the Clintons would, of course, but very few others."
Judges decide for themselves whether they move away from cases. Judge Ruth Bader Ginsburg has dealt with cases of Mr. Trump and his government after publicly criticizing him during the presidential campaign
In 2011, when the Supreme Court was preparing to challenge President Barack Obama's health policy Some critics said That Justice Thomas should disqualify himself because his wife Virginia had worked with groups that were against the law. Others said Justice Elena Kagan should not hear the case because she may have been involved in aspects of it when she was Advocate General of the United States. Both judges sat on the case.
In his 2011 final report, Chief Justice Roberts said that judges have the right to decide for themselves whether they should apologize – because they have been audited by the Senate.
"I have complete confidence in my colleagues' ability to determine when a refusal is justified," Chief Justice Roberts wrote. "They are lawyers of exceptional integrity and experience whose character and fitness have been studied through a rigorous appointment and validation process."