Let's Say Kavanaugh Is Confirmed. Democrats Can Still Save The Supreme Court

Brett Kavanaugh will probably be confirmed to the Supreme Court.

I don’t say that lightly.

The events of the past two weeks have been one of those moments of collective consciousness that seem to transcend the boundaries and bubbles of American life. Last Thursday, when Dr. Christine Blasey Ford delivered her testimony to the Senate Judiciary Committee — when she described her sexual assault at the hands of the Brett Kavanaugh — I was riding the MBTA with commuters who were watching the broadcast on their smartphones. Some of them were crying.

The next day, while out of town for work, I sat in a municipal parking area in northern rural Vermont listening to my car radio as the Senate Judiciary Committee voted to send the Kavanaugh nomination to the Senate. A red station wagon parked near me also contained listeners. It was a warm, sunny day. Our windows were rolled down. I could hear Chuck Grassley’s voice echoing across the parking lot.

The Kavanaugh hearing is far more than just a “job interview,” as many are glibly calling it. It's a national reckoning with unchecked predatory behavior by men with power. It’s the logical escalation of the #MeToo movement’s incursion into American politics — an ecosystem that's overpopulated by self-satisfied men who hail from Ivy League universities, prep schools and other breeding grounds where accountability for morally despicable behavior is more of an abstract concept than a standard practice.

And yet, for all the public anger and disgust that Kavanaugh’s nomination has inspired, it’s very likely that the Republican Party leadership will shoehorn him into the Supreme Court anyway. This will compromise the perceived integrity of the court by shoving it to the right, politically speaking. (It was already starting to lean right before Kavanaugh stepped into the picture.)

This leaves America in a demoralizing predicament. Even if Democrats and independents manage to win control of Congress and the White House by 2020 — an increasingly likely outcome — the legacy of Donald Trump and the modern Republican Party will survive in the Supreme Court.

A right wing court is likely to crush most legislative attempts to steer America down a more progressive and restorative path. Forget single payer health care, transgender rights, criminal justice reform and of course, upholding Roe v. Wade — Kavanaugh and his fellow conservative justices will have the power to shoot those dreams down, no matter what the wider voting public thinks about them.

This forecast might sound like the end of the world to Americans who oppose the Kavanaugh nomination, but in fact, there’s a pretty simple fix that hasn’t yet been seriously discussed in mainstream political forums.

That solution is court packing: that rarest of moments when the president and Congress decide to add seats to the Supreme Court.

[Kavanaugh's hearing] is a national reckoning with unchecked predatory behavior by men with power.

The last president who tried to do this was FDR, who was accused of trying to game the ideological balance of the court for the benefit of the New Deal. Here's what happened: Roosevelt proposed a bill that would grow the membership of the Supreme Court, which Congress swiftly and vehemently shot down. That's it. A modern president could do the same thing with a supportive Congress. And that is what the Democrats and their independent allies must do once they regain a supermajority.

It might seem early to talk about this, but the case against Democrats packing the court is already being fiercely argued. Beyond the same old predictable soundbites about civility and procedural standards, the common argument against increasing the Supreme Court headcount is that it would set off an endless cycle of political brinkmanship: that the Democrats would encourage the Republicans to add more seats whenever they regain power, or worse yet, that court packing would inspire retaliatory behavior like refusing to consider a Supreme Court nominee out of nothing but spiteful partisanship. As if that’s never happened before.

This is not a serious argument against court packing because it’s barely connected to the reality of what American politics has become now. It’s predicated upon the notion that the Supreme Court, as an institution, was a balanced and ideologically untainted wing of the government. It wasn’t. And Brett Kavanaugh will drag the court even further toward a place where it is not supposed to go.

The only way to recoup Kavanaugh’s seat, for the foreseeable future, is to add another one.

Furthermore, Kavanaugh’s nomination has been managed by leaders of a party that has embraced brinkmanship. The fact that Trump and the GOP haven’t swapped out Kavanaugh for a nominee who isn’t accused of sexual assault signals that the right doesn’t just want to win control of the court: It also wants to own the “libs,” out of cruelty or quite possibly revenge for eight years of leadership by the black center-left president whose Supreme Court seat they stole.

Court packing is an extreme but necessary means of ensuring that one political party doesn’t dominate the court. And as long as we still consider the court a necessary arbiter of litigious matters, we must commit to taking all necessary steps to ensuring that it has something of an ideological balance, even if that means surrendering to years — or even decades — of brinkmanship between the big political parties.

Anyone who claims to be horrified by such an idea has spent the last few years in an alternate reality located someplace between the ideal of what the Supreme Court is supposed to be and what it actually is. The Kavanaugh nomination has cast a harsh light on truths that some of chose to ignore or forget about. And one of those truths is that the court is a lot more vulnerable to the claws of partisanship than we would like to believe. Just ask Merrick Garland.

The only way to recoup Kavanaugh’s seat, for the foreseeable future, is to add another one.