The Kavanaugh confirmation drama reminds me of a capsule movie review of Dead Reckoning, a deservedly forgotten Humphrey Bogart thriller: “Everyone gets double-crossed – especially the audience.” Yes, Brett Kavanaugh finally has the seat he’s dreamed of and the Supreme Court has a conservative majority. But both are tarnished beyond measure. And so, to an extent, are we.
At least half the country regards Kavanaugh as damaged goods: an embittered partisan incapable of the impartiality we’d like to think characterizes those who sit on the highest court in the land. He cements a conservative majority of five-men – three of whom many will regard as illegitimate: Kavanaugh and Clarence Thomas because of allegations of dishonesty and sexual aggression; and Neil Gorsuch, who owes his seat to cynical – if technically legal – Republican manipulation of the confirmation process. It’s highly likely that many of their majority opinions will lack credibility in the eyes of half or more of the American people.
With lifetime appointments, the Supreme Court's legitimacy depends on that credibility – on the collective faith Americans have in the probity of its members and the process by which they’re nominated and confirmed. The process is already tainted – some might say corrupted – by today’s partisanship and the Kavanaugh drama seriously challenged our faith in the honesty and fair-mindedness of the justices themselves. One person who should be deeply worried about this is Chief Justice John Roberts, part of whose job is stewarding the public perception of the court – something that’s just gotten significantly harder.
Roberts has long hoped for a conservative majority, just as Kavanaugh has long aspired to a seat on the Court, but they now find themselves holding what Shakespeare called a “poisoned chalice”. In a powerful soliloquy Macbeth foresees that achieving his lifetime aim will ultimately cost him his life:
Bloody instructions . . . being taught, return
To plague the inventor: this even-handed justice
Commends the ingredients of our poison'd chalice
To our own lips.
Be careful of what you wish for or, to quote Justice Kavanaugh’s own Senate testimony, “What goes around, comes around.”
The saddest thing is how widely the poisoned chalice is shared - beyond Kavanaugh and Roberts to all of us who would like to regard the Supreme Court as a fair, impartial institution.
