Opinion

Michael A. Cohen

America loses with Kavanaugh on the Supreme Court

Demonstrators protest against the appointment of Supreme Court nominee Brett Kavanaugh on Capitol Hill in Washington DC, on October 5, 2018. (Photo by Jose Luis Magana / AFP)JOSE LUIS MAGANA/AFP/Getty Images
Jose Luis Magana/AFP/Getty Images
Demonstrators protest against the appointment of Supreme Court nominee Brett Kavanaugh in Washington Friday.

Senate majority leader Mitch McConnell won . . . and America lost.

On Friday, the US Senate indicated that it will vote, along largely partisan lines, to confirm Brett Kavanaugh for a lifetime appointment to the Supreme Court.

For McConnell, President Trump, and the rest of the Republican Party, their victory was years in the making — a decades-long multi-pronged effort to refashion the highest court in the land into a conservative, Republican-friendly institution.

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But in achieving this long sought-after goal they have near fatally damaged the court’s reputation and fundamentally undermined the legitimacy of American democracy in the eyes of millions of voters.

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From this day forward, with Kavanaugh as a justice, the Supreme Court will be seen by many as yet another hopelessly partisan and tribalized political institution.

After all, Kavanaugh’s place on the court was secured by a president who received 3 million fewer votes than his opponent. He will have gained the support of 51 senators from states that represent a minority of Americans. And he will join the court two years after Republicans blocked Merrick Garland, President Obama’s pick for the Supreme Court, from even receiving a Senate hearing. In short, the will of a majority of Americans has been thwarted.

But the hyperpartisan nature of the Kavanaugh fight, compounded by the nominee’s own words and, in particular, his harsh attacks on Senate Democrats, has driven a much deeper stake into the heart of the court’s legitimacy. The sheen of nonpartisanship for the judiciary is gone. This is true not just for Democrats, but also for Republicans, who have embraced Kavanaugh not simply because of his judicial ideology but because confirming him would be one more way for them to stick it to the liberals.

In her speech Friday afternoon confirming her support of Kavanaugh, Republican Senator Susan Collins of Maine said, “My fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court.”

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The disingenuousness of this comment is hard to measure. Kavanaugh’s ascendancy to the court will have the exact opposite effect, and Collins knows it.

Every case Kavanaugh votes on, particularly the inevitable overturning or at least legal obliteration of Roe v. Wade, will probably be seen in narrow, tribalistic terms — not as decisions grounded in the rule of law, but rather on political affiliation. That a man credibly accused of sexual assault could be the deciding vote in a decision to weaken the reproductive rights of American women is almost too painful to consider. And yet, it’s likely to happen.

What is most concerning is that Republicans are seemingly fine with this arrangement.

With Kavanaugh as a crucial conservative vote for decades to come, Republicans can now continue their legal assault on voting, labor, and consumer rights. They can take another stab at destroying Obamacare or weakening environmental regulations. They can give political cover to Trump’s lawlessness or to the misuse of his pardon powers. If Republicans ever lose political power, the court can — as conservative justices did more than eight decades ago during the New Deal — rule as unconstitutional any legislation passed by a Democratic Congress and signed by a Democratic president.

But as Kavanaugh said himself, “What goes around comes around.” The machinations of Senate Republicans have probably begun a cycle of recrimination and heightened political polarization that will be nearly impossible to undo.

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Already enraged, rank-and-file Democrats are talking about packing the Supreme Court with new members if they take back the White House and the Senate in 2020. Democratic leaders may try to resist these calls, but every Kavanaugh ruling that goes against them, between now and then, will only add to the fervor. Rather than compromise and bipartisanship, the tribalism of our current political moment will create a far different and more destabilizing style of politics — one in which the ends always justify the means.

Where does this end? I have no idea. The problem is that no one does, and the people responsible for it, namely Senate Republicans, don’t care.

Once political norms start being set on fire, it’s awfully hard to put out the flames. As painful as Friday’s vote may seem, the confirmation of Brett Kavanaugh will, I fear, presage an outcome far worse: a political conflagration that risks burning our democracy and democratic institutions to the ground.

Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.