October 22, 2018

WU | Brett Kavanaugh Is a Warning Sign for American Democracy

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As this column goes to press, 16 days have elapsed since Brett Kavanaugh was confirmed to the Supreme Court. That is, 16 days have elapsed since a moral, cultural and political inferno engulfed the nation. Yet this once-totalizing story has slipped beneath the headlines. Perhaps, then, Mitch McConnell, a top Republican, was correct in predicting “these things always blow over.”

Then again, perhaps not. The wrongful confirmation of Kavanaugh to the Supreme Court and liberals’ subsequent attacks on institutions show how high the political stakes have become. And as the stakes soar, raw power politics become ever more attractive. The logic of unbridled power politics risks plunging the country into crisis. Shrewd reforms are needed to defend American democracy from the corrosive politics of raw power.

Kavanaugh’s confirmation hinged on three women’s allegations of sexual assault. Faced with hair-trigger politics and uncertainty aplenty, one would hope Senate investigators would recognize the difficulty inherent in either corroborating the allegations or exonerating Kavanaugh. A proper confirmation required prudence and humility. Instead, both parties disgraced themselves.

Republicans displayed near-zero curiosity about the allegations — which, if true, were patently disqualifying. They did not interview Deborah Ramirez, an accuser, instead hiding behind a hasty FBI investigation. They did not subpoena Mark Judge, a potential witness named by Christine Blasey Ford, another accuser, who likely had valuable information.

Likewise, Democrats acted with reckless abandon. In July, Ford’s allegations ended up in the office of Dianne Feinstein (D-Calif.). But Feinstein sat on Ford’s testimony for months, only acting once Kavanaugh’s confirmation was almost over. Feinstein also held a letter detailing Ford’s allegations, which was later leaked — without Ford’s consent — to a reporter. It appears likely that someone in or around Feinstein’s office (i.e., Democratic staffers) is responsible for the leak. Moreover, the ease with which liberal politicians and commentators insinuated Kavanaugh’s guilt was as unseemly as it was unfair.

But the greatest damage was done when Republicans signed off on Kavanaugh’s repeated duplicity. He twisted the meanings of slang found in his high-school yearbook. His account of modest high-school and college drinking behavior was refuted by multiple former classmates. Kavanaugh claimed the drinking age in Maryland (where he attended high school) was 18. In fact, it was raised to 21 in 1982 — when he was 17.

Kavanaugh’s defenders will maintain that none of this matters, that it is foolish to wrestle over juvenile jargon or trivial fibs.

That view is wrong. Kavanaugh demonstrated a pattern of willing dishonesty unbefitting a Supreme Court justice. He put career ambitions before integrity. He may not have perjured himself, but he surely disqualified himself.

Yet now that Judge Kavanaugh is Justice Kavanaugh, justifiable anger has devolved into attacks on institutional legitimacy. A chorus of left-leaning thinkers have called out Justice Kavanaugh — and by extension the Supreme Court — as illegitimate. A noisy few go further, suggesting the Senate itself is illegitimate.

Kavanaugh’s confirmation, however, reflects not America’s broken institutions, but rather its broken politics. It reflects norms uprooted over decades by short-sighted partisans and presidents. It reflects a poisonous public discourse and a fractious society.

His confirmation reflects, most worryingly, an inexorable rise in the political stakes. Republicans felt trapped between a tarnished Kavanaugh and an unswallowable defeat at Democratic hands. To them, rallying around Kavanaugh was the only option short of political suicide. Democrats saw Kavanaugh as the encapsulation of everything they loathe. Hubris and privilege; muzzled assault victims; hostility to Roe v. Wade; the Trump presidency — he was wonderfully easy to demonize.

As the political stakes grow, so does the appeal of raw power politics. In How Democracies Die, the political scientists Steven Levitsky and Daniel Ziblatt argue that forbearance — the idea that power is wielded with restraint — is what underpins modern democracies. Raw power politics abandons forbearance. It weaponizes political norms and uses power to perpetuate power.

That is our present reality. The Republican stonewalling of Merrick Garland, Barack Obama’s nominee to the Supreme Court, exemplified the logic of raw power politics. So did former Democratic leader Harry Reid’s choice to blow up vital rules on most judicial nominees. As with Republicans’ efforts to cull state-level voter rolls. Or recent proposals to, in Rooseveltian style, pack the Supreme Court. One could go on.

The logical conclusion of raw power politics is a full-fledged crisis. A spite-fueled loop of tit-for-tat retaliation would eat away at every constraint the Founding Fathers put on political power.

Mercifully, we are not yet there. Promising, too, are compelling proposals to lower the political stakes, like Supreme Court term limits and ranked-choice voting. In particular, ranked-choice voting, which lets voters vote for candidates in order of preference, would discourage us-versus-them partisanship and boost candidates with a broad appeal. Implementing ranked-choice voting for state elections would be a good start. More such bold thinking is needed to stop the greatest country on Earth from self-destructing.

Ethan Wu is a sophomore in the College of Arts and Sciences. Discourse and Discord runs every other Tuesday this semester. He can be reached at ewu@cornellsun.com.