Kavanaugh court confirmation battle based on shaky assumptions

The president proposed a new justice for the Supreme Court, and political war broke out. 

Most Republicans back him, believing he will strengthen a conservative majority.  Most Democrats oppose him, because they share that belief.  They worry that he would vote to reverse Roe v. Wade, the decision confirming the legality of abortion.

The nomination has produced conventional wisdom about the Court that is either doubtful or just plain wrong.  Reality might turn out to be different from today’s hopes and fears.

One claim is likely to be correct.  If Brett Kavanaugh, the nominee, joins the Court, he might remain on it for decades.  Justices are appointed for life, and a vast majority has served at least 10 years.  Right now, the longest serving justice is Clarence Thomas, who has been on the Court for 27 years.

Would Kavanaugh, a conservative, replace a swing justice?  Not really. There were 13 conservative-liberal votes by 5-4 in the latest Court term.  Retiring Justice Anthony Kennedy voted with the conservatives every time.  Not much “swing.” People who imagine a switch focus on his favorable view of the 1973 abortion decision.

Two conservatives, Chief Justice Roberts and newly arrived Justice Gorsuch, each provided a swing vote to the liberal side in the most recent Court year.  They filled the role mistakenly thought to belong to Kennedy.

There are other reasons assumptions about the Court may be wrong.  For example, justices’ views change over time. Two Republican appointees, Chief Justice Earl Warren and Justice David Souter, surprised the presidents that appointed them by their liberalism once on the bench.  Souter also surprised everybody when he retired early.

Does the Court always split on conservative-liberal lines?  On many social issues and hot-button political issues, it does.  The media pays a lot of attention to the political affiliation of the justices.  The implication is that that the bitter partisan split in Congress has spilled over into the courts. 

But most of its decisions have little to do with ideology and a lot to do with clarifying the law.  Of the Court’s 76 decisions this past term, 35 were unanimous.

These factors yield the conclusion that the claim that Kavanaugh would bring major change to the Court’s conservative-liberal balance could turn out to be less obvious than we suppose.

Whatever happens, there’s no doubt that Kavanaugh can be expected to serve “for generations.”  

Based on their expectation about him, conservatives are comfortable and liberals despair. 

In fact, something can and has been done in American history to prevent a long-term, locked-in ideology.  It begins with the fact that the size of the Court is not set by the Constitution, allowing 

Congress to make changes at will.

After Democrat Franklin D. Roosevelt became president during the Depression, he faced a conservative Court whose majority opposed many of his key New Deal economic recovery policies.  Frustrated, he proposed “packing” the nine-member Court by adding justices sharing his views.

Roosevelt won re-election by a landslide, carrying all states except Maine and Vermont.  Congress overwhelmingly was Democratic.  After witnessing Roosevelt’s big electoral win, some justices dropped their opposition to his proposals.  It was a case of “a switch in time saves nine.” 

While Roosevelt’s “packing” plan may not enjoy a favorable place in history, it worked.  What’s more, the move had been previously put into effect, not merely proposed.

During the Civil War, Lincoln had only a slim majority on the Court.  Congress enlarged the Court, setting the number of its seats equal to the number of federal courts of appeal, the regional courts just below the top court.  Then, it created a new appeals court.

The Lincoln Court had ten justices as a result of this “packing” the Court.  But Congress did not want to give any appointments to Andrew Johnson, his successor, and reduced the Court to seven justices. After Johnson left office, Congress restored the Court to nine.

When the Democrats control the federal government, as they surely will sometime in Kavanaugh’s long tenure, they could expand the Court and change the balance.  With a justice for each court of appeals, there would now be 13.

In 2016, the Senate Republican majority refused even to talk with President Obama’s final nominee, a moderate, much less hold a vote on his nomination. That unprecedented action was easily as extreme as court “packing.”  It makes adding seats seem less radical.

Supreme Court nominees once were routinely confirmed, giving the president full discretion.  That practice is almost gone.  It has been replaced by gamesmanship and mistaken conventional wisdom.