In his monologue last night, Jimmy Kimmel talked about the fatuous one-week FBI re-investigation of Brett Kavanaugh: “It’s amazing how much you do not find out if you really don’t look for it,” he said.
Pretty good line. Pretty cynical. Pretty accurate.
It seemed like it might be a big deal when Sen. Jeff Flake extracted, as the price of his vote in favor of Kavanaugh in the Judiciary Committee (which was necessary to get the vote out of committee onto the Senate floor), a commitment to reopen the FBI background investigation. It has turned out to be small deal because the FBI did such a half-assed investigation that they didn’t even interview Christine Blasey Ford, nor Kavanaugh.
How the decision was made to pass on those interviews hasn’t been revealed, to my knowledge. But, at the moment, it appears that Flake’s decision, to push for a reinvestigation of nominee Kavanaugh, seems to have accomplished nothing important (unless he decides to vote nay in protest, which is not currently expected).
We have a new normal in Supreme Court nominations. They are party-line votes in a way they didn’t used to be. It would appear that between 95 and 100 senators will end up voting their party’s line on Kavanaugh.
And this relates to a small but important list of Supreme Court matters – abortion, as in the overturning of Roe v. Wade, is the biggest – on which there are overwhelmingly partisan positions. With few exceptions, Democrats want to preserve Roe, Republicans want to overturn it to reduce abortion rights.
Interestingly (at least to me): When Roe was decided by a 7-2 margin in 1972, there was nothing party-line about the vote. The two dissenters were one Democratic appointee and one Republican appointee. The Seven-member majority consisted of four justices appointed by Republican presidents and three appointed by Democrats.
Since then, the underlying question of whether there is a constitutional right for a woman to have an abortion, at least in the first trimester of a pregnancy, has become strictly partisan. Of the current eight justices (with one vacancy), the four Democratic appointees are pro-Roe, the four Republicans are anti-Roe. And, although Kavanaugh, when asked about Roe, always repeats, without visibly winking, that the ruling is an important Supreme Court precedent, it is universally believed that his confirmation will lead to the end of the Roe era.
So, in a way that used to not be the case, justices are now nominated and confirmed on more and more party-line votes. There are a few red-state Democratic senators, and a couple of pro-choice Republicans who are harder to predict, and that’s where the action is right now on Kavanaugh.
But my main point for this morning is that Supreme Court nominations and confirmations are now party-line matters in way that was not normal in the past because of these hyper-partisan matters that are determined by the partisan makeup of the court.
According to myth, Supreme Court decisions are supposed to be above partisan politics. But that’s pretty much over, as a matter of reality. And now, at the risk of overstating the matter, the Supreme Court acts to some degree, as a nine-member unelected super-legislature serving life terms whose policy preferences on many matters carry more weight than those of the actual elected legislators in Congress.