In the week since the Senate sent Brett Kavanaugh to the Supreme Court, a hurricane has hit Florida, a member of President Trump’s cabinet somehow managed to resign while remaining on his good side and Deputy Attorney General Rod Rosenstein’s fate has been in constant flux. So the tumult over the confirmation has faded, for many Americans, into a fuzzier sense of unease.
But it is important not to forget, even if there are plenty of people who want to.
The most startling example of how the abuses of the powerful are swept further under the rug when they gain more power came this week when Chief Justice John Roberts Jr. referred complaints against Kavanaugh filed with the U.S. Court of Appeals for the District of Columbia Circuit to the U.S. Court of Appeals for the 10th Circuit in Colorado. The catch: That court will probably declare the complaints moot, because the judiciary’s rules on misconduct do not apply to Supreme Court justices.
The judiciary’s rules on misconduct don’t apply to Supreme Court justices. Well, of course they don’t.
Now that Kavanaugh is seated, the argument seems to go, everything is hunky dory, and we can ignore all that lying and all that yelling. Republicans are wary of a Democratic push to pack the court or otherwise alter it. But they’re not the only ones doing their best to make everyone else move on — the justices are, too.
Why else attend a swearing-in ceremony with Washington insiders if not to lend legitimacy to Kavanaugh’s pledge to be “an independent and impartial justice”? It should not have surprised a single one of his colleagues-to-be that they were used as props in what amounted to a Trump campaign party, complete with a band and a bar. The justices, wittingly or unwittingly, sat among an applauding audience while Trump lavished praise on Senate Majority Leader Mitch McConnell, R-Kentucky, and Sen. Susan Collins, R-Maine, and the other supposed heroes of a spectacle the president turned only more spectacular.
Why try so hard to cultivate a courtroom atmosphere that the Associated Press described as “jovial” on Kavanaugh’s first day hearing oral arguments. Almost every article recounting Tuesday’s arguments focused on Kavanaugh and Justice Elena Kagan, his neighbor on the bench, confabbing and even sharing a giggle or two — and Justice Sonia Sotomayor leaning over to pinch Justice Neil Gorsuch playfully, as he responded with an exaggerated expression of surprise.
No, it would not have been preferable for Ruth Bader Ginsburg to spend the morning scowling at her new colleague from several seats away, and no, Sotomayor should not have punched Gorsuch in anger, or even pinched him especially hard. But Tuesday on First Street, it seems, wasn’t simply business as usual. It was business as unusually cheery.
It’s no wonder justices want to preserve the non-politicized credibility of their institution. Americans should want that, too, and it would be a disaster if Kavanaugh were turning even relatively routine cases like Tuesday’s into referendums on Trump or the Republican Party, or if justices from opposite parties were refusing to speak to each other on principle. But acting as if the absence of that obvious partisanship is a sign that all is well is dangerous, too.
There is an interest in maintaining the legitimacy of the court. But there is an interest in maintaining the legitimacy of any institution — especially to those who are part of it, or part of the system it operates in. And that interest often ends up sheltering institutions that could benefit from being bashed around a bit.
The Supreme Court, right now, is one of those institutions. Maybe that means restoring the 60-vote confirmation threshold, maybe it means imposing term limits, or maybe it means adding more justices to the bench. But something has to happen so that the political imperative to ram through an antiabortion justice is less likely to override the moral imperative to listen to a woman when she says, with credibility, that a man assaulted her. And if Americans are fooled into thinking everything really is OK, nothing will happen at all.
The court, of course, is not the only institution that needs an overhaul. Congress needs to change so it is not full of old men who care more about how they could be hurt by a nonexistent epidemic of false accusations than they do about how women are hurt by the very real menace of assault. And the country more broadly needs to change so that young men don’t grow into replicas of those old men.
But that doesn’t take away from the troubling truth: When the justices sat at the swearing in ceremony, they were honoring the corruption of their own institution. Maybe they thought that would help save it. Unfortunately, sometimes justice really is blind.
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