Saving SCOTUS, Step 1
By: Will Staton
Tags: Supreme Court, Brett Kavanaugh, Politics, SCOTUS, Judiciary

Saving SCOTUS, Step 1

The federal courts are tainted by illegitimacy. This is true throughout, but is nowhere more pronounced than on the Supreme Court. The blatant hypocrisy Republicans showed by refusing to consider Merrick Garland but ramming through Amy Coney Barrett destroyed the legitimacy of the institution.

Rightfully furious over this undemocratic hijacking of the federal court system, liberals and democrats are considering numerous ways to rectify this illegitimacy and make the court a credible body again. While some sort of action is necessary to restore the legitimacy of the court and prevent the anti-democratic attempt to entrench minority rule orchestrated by Republicans, it is also important that Democrats undertake this process as transparently and legitimately as possible. The Supreme Court needs saving, but Democrats should be careful to avoid intentionally provoking Republicans or one-upping them in a way that invites future recriminations. Republicans have already shown they are willing to burn down the nation and the rule of law in pursuit of their agenda, so rather than fueling their fire, Democrats must make engage with the issue as carefully as possible while still refusing to accept the current state of affairs.

Rather than immediately rushing to expand the court, as many hope to do, Democrats ought to begin by addressing the membership of the current court. Specifically, they ought to impeach Brett Kavanaugh.

Kavanaugh has no place on the Supreme Court. There are numerous reasons why this is the case, but none is more important than the fact that he perjured himself during his confirmation hearings when he lied about his role working with the George W Bush administration. Kavanaugh’s perjury is on the record and verifiable, however it was overlooked during his hearing due to the fact that Republicans refused to make many documents public — as they were trying to hide the past about which Kavanaugh was lying under oath — and of course the explosive accusation of sexual assault leveled against Kavanaugh by Dr. Christine Blasey Ford.

While it is quite likely that Kavanaugh also lied about sexually assaulting Dr. Ford, it is certain that he lied about his role in the Bush White House. House Democrats could expose Kavanaugh’s perjury quite easily by impeaching him and comparing his testimony during his hearing to the emails Republicans hid during those same hearings. If they wanted to, Democrats could also subpoena Kavanaugh’s friend, Mark Judge, who would almost certainly confirm that Kavanaugh did, in fact, assault Dr. Ford, but absent seeking justice for Dr. Ford, there is no reason for them to go down that path. Exposing Kavanaugh as a liar and proving his illegitimacy can be accomplished without confirming that he is a sexual predator.

Of course, as was the case with Trump, there is virtually no chance that Senate Republicans will be swayed by facts, evidence, or anything other than their craven political concerns. Impeaching Kavanaugh almost certainly will not lead to his removal from the bench, although of course it should result in his ultimate disbarment.

But impeaching him does demonstrate that Democrats are attempting to reform the court fairly and transparently, not simply by punching back, as cathartic as that might feel. If Democrats were to add four seats to the court and populate them with liberals, many would see it simply as an act of political one-upmanship, and although it would be an act invited by Republican attempts to dismantle the system, it would still be an act of one-upmanship that would certainly result in Republican escalation as soon as the opportunity presented itself.

It is possible — perhaps even likely — that Republicans will fight tooth and nail to defend the system they have so illegitimately constructed. This is the party that spent the last four years abetting unprecedented presidential corruption, lawlessness, and yes, treason. Is there really any chance that they will respond to a sober attempt to rectify the court without needlessly escalating the political fight? Perhaps not; maybe it is naive of me to think otherwise.

However, Democrats owe it to themselves, to the nation, and to the reputation of the institutions they are trying to save to go about this process the right way. Impeaching Kavanaugh presents the public with ironclad evidence that he does not belong on the court, and if Republicans are willing to entertain a perjurer on the Supreme Court bench, then Democrats will have every reason to take whatever steps are necessary to change the paradigm.

The legitimacy of the court is already in tatters. Exposing Kavanaugh’s perjury gives Democrats to address that illegitimacy in the most legitimate way possible. If we are to save the Supreme Court, we must try to restore its reputation as an apolitical organization. That is impossible with the court’s current makeup, but there are still more and less legitimate ways for Democrats to clean up the toxic situation Republicans have created by corrupting the court.