Kavanaugh is the new normal: Supreme Court nominations and confirmations are now party-line matters

Kavanaugh and the emerging new normal
REUTERS/Joshua Roberts
Supreme Court nominee Brett Kavanaugh testifying during the second day of his confirmation hearing before the Senate Judiciary Committee.

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).

And I’m not sure any of this matters.

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.

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Comments (43)

  1. Submitted by Ron Gotzman on 10/05/2018 - 10:22 am.

    It is perfectly legitimate to argue against the roe v wade decision because it was poor jurisprudence, undemocratic, and sets up a legal precedence that allows the constitution into a never ending scenario of inventing rights to appease special interest groups. (politics)

    It is legitimate to believe that Supreme Court abused the Constitution to usurp the authority of the people by imposing an unjust policy with disastrous results. I think history and this article give evidence to this conclusion.

    Such arguments against the abortion decsion are outside the religious and scientific realm.

    • Submitted by RB Holbrook on 10/05/2018 - 01:17 pm.

      Roe v. Wade is the natural extension of the jurisprudence in Griswold v. Connecticut.

      Interestingly, for much of history, all abortions were not criminal under the common law. Blanket prohibitions against abortion started being enacted in the 19th century as sanitary measures.

  2. Submitted by Ray Schoch on 10/05/2018 - 11:16 am.

    Mr. Gotzman is entitled to his opinion regarding Roe v. Wade, which I don’t share.

    However, he is, I think, quite **incorrect** in making a case that the Supreme Court has no business interpreting the Constitution. Such interpretation is, in large measure, the Court’s **job,** going back at least to Marbury v. Madison, and including thousands of cases brought before the court since then.

    While I’m not happy about the overt politicization of the Court and its decisions, there’s no way to prevent the Court – or **any** of our institutions – from being political to some degree. Politics is how democratic societies function, and I’d argue that the degree to which the populace distances itself from politics in a society that calls itself “democratic” is, in fact, a measure of its dysfunction, and is almost the antithesis of “democratic.” To fall back on an oft-used sports and gambling analogy, you can’t win if you don’t play the game. Those who insist that politics should play no part in government are living in a fantasy world, quite disconnected from how human institutions actually work, and by holding themselves above the fray, so to speak, they abdicate their civic duty, not to mention that people and ideas they oppose will win because the political Puritans have chosen not to take part in the democratic process.

    Times change, as do SCOTUS decisions. What used to be legal (e.g., slavery) is no longer legal. What used to be illegal (e.g., abortion) is now legal. Claiming that the SCOTUS is “usurping the authority of the people” is sophistry, since the Court’s authority along with that of every other level of government institution in this country, comes **from** the people, according to our hallowed mythology.

    Raising a straw man to be knocked down with propaganda phrases like “unjust policy,” simply lets us know that you don’t like the Court’s decision(s). That’s OK – I don’t always like the Court’s decisions, either (e.g., Citizens United) – but I don’t argue that such a decision is outside the scope of the Court’s constitutional duties and responsibilities.

    • Submitted by Ron Gotzman on 10/05/2018 - 03:37 pm.

      IMO the abortion decision could have been left to the legislative process of the States (the people) and not the fiat of the supreme court. – naturally.

  3. Submitted by Jon Kingstad on 10/05/2018 - 12:56 pm.

    The abortion issue epitomizes a disconnect between morality, law and politics. Contrary to Mr. Gotzman’s beliefs, Rose v. Wade was a legitimate jurisprudential response to an insolvable moral debate. The Court found that abortion laws had been enacted in the 19th century in response to demands by the emerging AMA to protect the monopoly franchise of licensed doctors against unlicensed midwives practicing abortion along with midwifery. There was an element of morality in that it was presumed abortions were performed for unwed women to avoid the scandal of obvious sinful behavior, sex outside of marriage. The Court found that there was no common law precedent against abortion. The Bible is completely silent on it. Justice Blackmun, who had been counsel for the Mayo Clinic knew that Protestant hospitals generally followed the policy of saving the life of the mother over an infant; Catholic hospitals would save the child’s life before the mother’s. Until Pope Paul VI’s humane vitae in the 1960’s, there was no special doctrine that singled out abortion or birth control as sinful or immoral outside of the overall condemnation against sex outside of marriage.

    The anti-abortion movement has politicized what at bottom is a moral issue in order to make a blanket legal issue that would make abortions illegal. There is not even consensus about that: should there be exceptions for saving the life of the mother? how about rape or incest? under what circumstances does the mother’s own decision about her health entitled to weight?

    Roe v. Wade was decided in 1973 at about the same time as a consensus among the justices of the Supreme Court and many legal scholars that the Court could preserve a remnant of “substantive due process” (famously represented by Lochner v. New York and West Coast Hotel v. Parrish) in areas of the First Amendment and certain areas closely related to marriage and family relations. There, the Court would develop the now well known methodology of reviewing a state law which attempted to regulate in those areas by making the state justify its control by using exacting language and showing a compelling state interest. State laws prohibiting birth control and abortion failed that test.That was in a case brought in a federal court to enjoin enforcement of a state law. Groups like Planned Parenthood which provide abortion and birth control services to poor women have borne the burden of seeking to enforce Roe v.Wade in countless actions in federal court.

    Nominee Kavanaugh has stated in his confirmation hearing that he accepts Roe v. Wade as “settled law.” But he knows this is meaningless if Planned Parenthood or other groups are denied access to the federal courts to enforce it. States, especially in the “Bible Belt” have shown much willingness to pass laws which defy Roe v. Wade and invite challenges. Roe v. Wade will not be overruled expressly but will be rendered moot by federal courts whose hands are tied from enforcing it even b federal judges who want to.

    This will not end any debate, moral, legal or political. It will only make safe and legal abortion and possible other birth control unavailable to less affluent women. That’s injustice and disaster when women, especially lead by desperation, seek out illegal abortions and suffer health problems or death for making a personal mistake. A mistake for which the responsible men often face no consequences. It’s unjust and an appalling waste. Talk about “usurping the authority of the people” is hollow rhetoric which only begs the question of whether human beings have fundamental liberties and whether it’s any of “the people’s” business how I or any one else manages their sex life or their decision to have a child.

  4. Submitted by RB Holbrook on 10/05/2018 - 01:20 pm.

    I learned an interesting fact about the Supreme Court this morning. Of the 113 people who have sat on the Court, only one was (a) appointed by a President who lost the popular vote; and (b) confirmed by a vote of a number of Senators who, in total, represented less than half the population of the United States.

    Take a bow, Neil Gorsuch. You are a history-maker.

  5. Submitted by Joel Stegner on 10/05/2018 - 01:30 pm.

    If Roe v Wade is passed and those who decry abortioncontinye their incredibly stupid and immoral efforts to block access of women to contraception, more pregnant will die, be deserted by the men who desert them, and raising children as single moms. In poverty, without the slightest bit of support from people who claim to be pro life. It is like watching a train wreck that is about to happen.

    As for projecting a new normal based on two years of Trumlp, why does the media persist in making these claims, given how many of these predictions have been wrong?

  6. Submitted by Tom Anderson on 10/05/2018 - 04:44 pm.

    I’m surprised that so few people realize that most Supreme Court decisions are not 5-4 and thus not as “political” as many insist.

    No matter how “half assed” a job the FBI did (I disagree with that assessment) this vote result would have been the same two weeks ago and the country would have been better served by such an action back then.

    • Submitted by Paul Brandon on 10/05/2018 - 06:52 pm.

      Most of the Supreme Court votes are not on controversial subjects, and thus are decided by a clear majority.
      It’s the high profile issues that involve court splits.

      • Submitted by Tom Anderson on 10/06/2018 - 11:59 am.

        If most decisions are not controversial, how did the cases make it all the way to the Supreme Court? It would seem unlikely that decisions that were the same and unanimous all the way up the judicial chain would ever make it to, and be accepted by the court.

        • Submitted by Paul Brandon on 10/06/2018 - 07:28 pm.

          Appeals eventually wind up in the Supreme Court.

        • Submitted by RB Holbrook on 10/07/2018 - 02:30 pm.

          Off the top of my head, I can think of two ways:

          1. Unsettled issues.

          2. A conflict in holdings of Circuit Courts.

          A unanimous decision does not mean there was no disagreement in the lower courts.

  7. Submitted by John Evans on 10/05/2018 - 06:28 pm.

    You’re right, the court is more nakedly partisan and more polarized than it ever was. And it’s not really because the country has changed, so much as that the two major parties have repositioned themselves to describe more coherent, natural groupings of society as a whole.

    Skeptical? Ask yourself why the divide in votes for Republicans vs. Democrats has for so long hovered consistently around the 50-yard line. It’s a matter of market positioning by the two parties; they keep adjusting their philosophical positions to take in different groups, while abandoning other smaller conflicting groups.

    The Democratic Party found, over time, that people who favor civil rights tend also to favor women’s rights, much to the consternation of their Catholic constituents, many of whom defected to the Republicans. Then they found that their people also didn’t support the war against Viet Nam, and were skeptical of most subsequent wars.Uh-oh, there went the military interests, who turned Republican instantly and with a vengeance.

    The Republican party gleefully pursued the disaffected racists and welcomed religious and cultural reactionaries of all types.They gave the military everything they could possibly want, and then some, and have managed to merge military and financial interests into a seamless, multiheaded elite coalition with an angry popular reactionary voting base.

    The Dems have been trying to maintain their alliance with socially liberal financial interests to the point of alienating the financial populists that used to be the base of the party, way back before the party abandoned segregation to embrace civil rights.

    After WWII, Dwight Eisenhower became president of Columbia University. Imagine a Republican president today showing any respect for education or science!

    To return to the Supreme Court, we now see that Republican administrations are choosing justices strictly to serve the interests of their constituent elites. Kavanaugh, for instance, has never practiced law, except as a Republican Party operative.

    Kavanaugh was rewarded in 2006 with a federal judgeship after amassing a particularly gaudy resume as an aggressive Republican Party operative. You couldn’t possibly choose a more reliable agent for Republican interests before the court!

    And this is because the Republican Party is, more than ever, completely clear about who it serves. Its priorities lie not with the rule of law or the unity and integrity of the republic. They lie not with the values of the people in a changing world.

  8. Submitted by Hiram Foster on 10/06/2018 - 07:14 am.

    I think the de facto end of the Supreme Court’s authority is in the cards. It’s simply too big a job for lifetime employees. The confirmation of Kavananaugh just means that it’s less likely that Trump will be the president to defy the Supreme Court’s authority but the day is coming.

  9. Submitted by Curtis Senker on 10/06/2018 - 09:19 am.

    ” 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.”

    I’m sorry, I thought Ford and Kavanaugh had spent several hours answering questions under oath on national TV, watched by millions.

    Does the author think they’d have said anything different to the FBI?

    And speaking of fatuous…

    The leftists say the investigation wasn’t long enough. “Long enough” to leftists is 10 minutes after Judge (Justice) Kavanaugh is laid to rest. Sorry friends, that’s not how it goes.

    • Submitted by Paul Brandon on 10/06/2018 - 07:32 pm.

      As many people have pointed out, the FBI (unlike most Senators) are professional questioners. They are more likely to get complete and accurate answers.
      And if 11 months was not long enough for Merrick Garland, why was one week long enough for Bart Kavanaugh? Many proposed witnesses were not questioned (but probably will be next year when the Dems control the House Judiciary Committee.

      • Submitted by Curtis Senker on 10/08/2018 - 08:48 am.

        The Senate GOP hired a professional questioner to question them during the hearing. You think either one of them are going to change the answers they gave under oath?

        Face it, the plan failed. Kavanaugh is confirmed. He will be on the court for the next 30 years.

        • Submitted by Paul Brandon on 10/08/2018 - 09:36 am.

          Except that the GOP senators did not let her finish her questioning (and then there was the limitation set by limiting her questioning to 5 minute blocks). They jumped in to make political speeches.

          • Submitted by Curtis Senker on 10/08/2018 - 04:46 pm.

            It’s done. It’s fine. Time to #Moveon

            • Submitted by Pat Berg on 10/09/2018 - 04:27 pm.

              You’re the one who asked if Kavanaugh would have said anything different to the FBI. And the answer is, yes, it’s very possible he would have, because the FBI (if allowed to do their job properly) would have actually asked him substantive questions requiring substantive answers. But you don’t care to face up to that uncomfortable fact, so your response is to just tell us to move on.

              • Submitted by RB Holbrook on 10/10/2018 - 02:42 pm.

                “Move on,” like the Republicans have moved on from the Clinton-era scandals. They’ve put that era behind themselves so wonderfully, haven’t they?

  10. Submitted by Hiram Foster on 10/07/2018 - 07:28 am.

    It’s time to pack the court.

  11. Submitted by joe smith on 10/07/2018 - 10:48 am.

    Did anyone confuse the “wise Latina” Sotomayor with a conservative? Was it clear she believed the constitution is a living, breathing document open for interpretation? Geeze, sounds like Obama’s pick is a progressive who will side with the liberals on the court. Hmmm, seems like if you’re a liberal progressive you are fine with a President picking a Sotomayor type but not Trump picking an originalist, who’s going to interpret the law not make it. I will take an interpreter of the law over a Justice deciding they should make laws, that’s the elected officials of congresses job. Keep them separate the way our Founders wanted.
    The Left is upset because for the first time in decades the Supreme Court will not vote in EPA like Federal agencies, with unelected officials, making laws from DC for all 50 states. Thank goodness, that’s the States job.

    • Submitted by Jon Kingstad on 10/07/2018 - 09:42 pm.

      It sounds like you think that a nominee who believes that the Constitution is a “living, breathing document open for interpretation” is the definition of a progressive or a liberal, as opposed to an “originalist” or conservative who interprets “the law” as it is found in the Constitution. As if the “liberals” got to pick “their” way of interpreting the Constitution so it’s now the “conservative’s” turn to pick their oracle.

      I completely appreciate and agree that words need to be read or interpreted as meant or written, but the example you mention about the case involving the EPA, has nothing to do with the Constitution. It involved the interpretation of the Clean Air Act, a law enacted by Congress. You didn’t mention that the case was about whether the EPA could regulate CO2 as a “pollutant” in light of scientific studies which establish CO2 emissions by coal fired utility plants as emitting “pollutants” that contributed to climate change. That decision was written by Justice Stevens, who was appointed by a Republican, by the way.

      I’m not bothered by the appointment of any supposed “originalist”. That would be anyone who would be appointed by any President who has legitimate credentials who always would look at the language of the document that is being considered or compared. I’m bothered by the appointment of a person by a President who wishes the law enacted by Congress to be interpreted as he would wish them to be interpreted, and a nominee who has revealed himself to be willing to be the instrument of that wish.

    • Submitted by Paul Brandon on 10/07/2018 - 10:50 pm.

      More to the point, it is upsetting that someone with a record as a political activist was pushed onto the court with minimal vetting (such as examination of more than 10% of his Bush administration records).
      His final statement alleging a Democratic conspiracy against him made his lack of an appropriate judicial temperament apparent.

  12. Submitted by joe smith on 10/07/2018 - 11:30 am.

    One other point that seems to get moderated out steady here at Minnpost. How could Feinstein be so naive to mention the Swetnick accusation and have it in the official record of a Supreme Court nominee. It was bad enough that a 35 year old accusation (with no witnesses) was leveled at him, now Kavanaugh was defending not only being a gang rapists but leading the gang rapists. Kavanaugh had heard enough total BS and rightfully went off with both barrels.
    Feinstein leaked the memo (her or her staff) after the process and introduced Swetnick’s accusation to make this a circus. The blame for this atrocity falls firmly at Feinstein’s feet.

    • Submitted by Paul Brandon on 10/07/2018 - 10:52 pm.

      Of course, you have proof that Feinstein was responsible for leaking that memo.
      Or is that just another alt-fact?

      • Submitted by Ron Gotzman on 10/08/2018 - 08:44 am.

        So now you care about evidence?

        • Submitted by Paul Brandon on 10/08/2018 - 09:38 am.

          Always did.
          It was the Trumpians who invented ‘alternative facts’.

          • Submitted by joe smith on 10/08/2018 - 11:23 am.

            No Trump didn’t start alternative facts, it’s called lying and both parties have mastered it. Feinstein and her staff had Ford’s letter asking for her identity not to be shared, it was leaked, who did it?
            Feinstein entering Swetnick’s name into the official record is a complete disgrace. That is not an alternative fact!

            • Submitted by RB Holbrook on 10/09/2018 - 09:21 am.

              Trump is unique not for lying, but for doing it so shamelessly and repeatedly. He is also unique for having followers who either believe him or refuse to give even lip-service to the idea that lying is wrong. They jump immediately to deflection,as with comments like “No Trump didn’t start alternative facts, it’s called lying and both parties have mastered it. Feinstein and her staff had Ford’s letter asking for her identity not to be shared, it was leaked, who did it?”

    • Submitted by Brian Gandt on 10/08/2018 - 09:12 am.

      Feinstein is to blame? Isn’t Kavanaugh responsible for his own behavior?

      Silly me, I forgot that “personal responsibility” is no longer even an empty platitude for Republicans. It is full on victimhood now.

      • Submitted by ian wade on 10/09/2018 - 02:06 pm.

        Brian, not only is Feinstein responsible, but apparently Obama is the reason that Trump had to be elected,or so I’ve read from conservative types. I’m still trying to wrap my head around that one.

  13. Submitted by Edward Blaise on 10/08/2018 - 08:53 am.

    If the court unwinds Roe V Wade, any chance we could take a shot at Bush V Gore?

    • Submitted by Frank Phelan on 10/08/2018 - 09:46 am.

      Bush V Gore was such a lousy decision the Court said at the time it cannot be used as precedent. So I guess they over turned themselves in a way.

  14. Submitted by Paul Udstrand on 10/08/2018 - 11:59 am.

    This shouldn’t surprise anyone who’s been paying attention. Republicans have drifting towards this kind partisan extremism for decades. It was clear by the early 90’s that Republican’s no longer interested in sharing governance but were dedicated to taking over government entirely.

    We saw this extremism in play when the kept a SCOTUS seat empty for a year, and THAT was when Obama was still President, so this isn’t really about Trump.

    So this has been a Republican design for decades, we’ve seen it with the Second Amendment, and now we’ll see it with Roe v. Wade.

    Whether it a “new normal” for any length of time depends on how much longer liberal Americans and Democrats allow it to continue. The Republican Party appears to be dissembling and this confirmation will likely explode in their faces (like so many other hand grenades they’ve been throwing into American living rooms). However the level of political incompetence and malfeasance among Democrats has brought us here, and it shouldn’t be underestimated. To the extent that this is “normalized” it’s been normalized by centrists who’ve trying to accommodate extremism for decades.

    Frankly, I think if Democrats get control of the House and Senate, now or in the future, one of the first items of business should be to impeach Kavanaugh and get him off the bench. In fact I think impeaching Kavanaugh might be way more important than the question of impeaching Trump.

  15. Submitted by Tim Smith on 10/08/2018 - 01:38 pm.

    What does Jimmy Kimmel know about anything? Certainly not FBI investigative techniques period, but especially not related to high school parties over 30 years ago. Dems would love a long drawn out useless Mueller type investigation am sure, too bad.

    What were the vote counts and process like for Obama and Clinton nominees?

    • Submitted by ian wade on 10/09/2018 - 02:02 pm.

      Well, I’d say he knows as much as “pundits” that comment on message boards. As for that useless Mueller investigation ( the one that has netted 8 convictions, 27 individual and three corporate indictments) If Kavanaugh was a Dem nominee, I’m sure that Repubs would have had no problem with a much more useful long, drawn out investigation, like Benghazi, which found absolutely nothing.

  16. Submitted by Steven Prince on 10/08/2018 - 04:31 pm.

    The article says “We have a new normal in Supreme Court nominations. They are party-line votes in a way they didn’t used to be.” Only if you consider anything during the Trump era “the new normal.” Except for Gorsuch and Kavanaugh the votes have been largely bi-partisan (including the close vote over Thomas in 1991) fro a very long time. John Roberts was approved 78-22.

    What’s new about Kavanaugh is not the vote tally, but that a judge opposed by a huge number of law school professors, his former dean, a former supreme court justice, and the Council of Churches – all for a lack of judicial demeanor – was even voted on, much less approved.

    • Submitted by Paul Udstrand on 10/10/2018 - 11:34 am.

      The “new” partisanship is a reflection of a delayed Democratic response to Republican extremism. The fact that Thomas, Scalia, and Roberts got such big majority votes reflects the centrist Democratic tendency to seek accommodation with extremists. What’s “new” is the realization that extremism needs to opposed.

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