Benjamin Studebaker

Remember when Antonin Scalia died and Barack Obama tried to replace him? I remember because on that occasion I wrote one of the most mistaken pieces I’ve ever published on this site: “How Obama Can Replace Scalia“. In that piece, I argued that because previous Supreme Court justices had been replaced in time periods much shorter than the remainder of Obama’s term, Obama would surely also be able to replace Scalia before leaving office. After all, if Republicans attempted to block him for almost a full year, the public would be furious with them for playing politics with the court, and would play a price at the 2016 election. I even had a nice chart:

I was completely wrong about this because I underestimated the degree to which the Supreme Court has become transparently political, even in the eyes of ordinary Americans. Our political parties hardly even have to excuse politicising the court (though they try to do so anyway). We all know that some of the justices are conservative and some are liberal, even if they couch their political ideology behind legal theories like “originalism” and “textualism”. We recognise that there is no such thing as an apolitical judge, that when judges claim to be politically neutral they are being disingenuous. So we now treat Supreme Court nominations like any other political issue and fight tooth and nail to ensure that the next judge is someone we can ideologically live with. And we may have to live with their ideology a long time–between presidents picking younger judges and judges living longer, the average bench time for a Supreme Court justice has quietly increased by around a decade. Having learnt from my mistakes, I now look at the fight to replace Anthony Kennedy quite differently.

President Trump’s nominee, Brett Kavanaugh, has been accused by multiple women of sexual assault. The accusations now come so quickly that it’s impossible for me to know whether there have been more while I’ve been writing, or between the time I’m writing and the time you read. Regardless of whether the allegations are true, for purely political reasons we would normally expect Kavanaugh to be pulled at this point. These accusations have helped to revive the #MeToo movement, and Kavanaugh is not particularly popular. By defending him Trump and the Republicans allow themselves to be associated with sexism and misogyny. It’s not a great look, even by their standards.

So why does Donald Trump defend Kavanaugh so fiercely? There are those who argue that the Republicans are sticking up for Kavanaugh because they are themselves sexist and misogynist, but the Republicans are really much less principled than this. The Republicans recognise that the Supreme Court is a site of political struggle and they treat it as such. Their only goal here is to get as many right-wing judges on the bench as possible. Ordinarily, that would mean swapping out Kavanaugh for someone easier to confirm. But there is a midterm election in less than two months. There isn’t time to get a replacement judge confirmed before the midterm.

The midterm projections don’t look great for Republicans. Donald Trump’s approval rating hovers just shy of 42%–which is actually higher than it was in the weeks preceding the 2016 election–but the generic ballot strongly favours Democrats, and 538’s projection gives the Democrats roughly an 80% chance of taking the house and a 32% chance at taking the senate. This 32% chance–higher than the odds 538 gave of a Trump victory in 2016–is enough to scare the Republicans into attempting to push Kavanaugh through right now, even under the glare of the allegations.

When political parties play politics with the court, they always pretend like they’re not doing it, and their supporters believe or pretend to believe their obvious lies. So of course the Republicans have to say that they are defending Kavanaugh because they don’t think he committed these crimes. Then they have to go further and go after the accusers and say it’s all a political ploy to stop Kavanaugh. The thing is, they’re half-right–it is absolutely the case that many, many Democrats and people on the left are running with the accusations in part because they were ideologically opposed to Kavanaugh in the first place and never wanted him on the court. There’s a good chance, given the sheer volume of allegations, that they are true, but the left would be playing up the odds that they were true regardless.

The left has very good reasons for wanting Kavanaugh gone. When academics score Kavanaugh on judicial ideology metrics, he ends up right next to Clarence Thomas:

Amnesty International opposes Kavanaugh–not because of the allegations, but because of Kavanaugh’s role in approving torture, abduction, and enforced disappearance, and warrantless wiretapping during the Bush administration, and his propensity to lie about that role under oath. So of course, given Kavanaugh’s record, the left will do everything it can to prevent him from being confirmed. And of course, given Kavanaugh’s record, the right will do everything it can to shunt him through before they risk a midterm election after which they may be forced to produce a judge which a Democratic senate might confirm.

In that political fight, Brett Kavanaugh’s accusers inevitably become playthings. Republicans have to say they aren’t credible or they’re lying. Democrats have to say that they absolutely, 100% must be believed. But really, both sides care much less about the accusers than they care about what they can use the accusers to do, politically. And can you blame them? If Kavanaugh is confirmed he will deliver piles of right-wing decisions for decades with large, comfortable majorities. And if he is not confirmed, there’s a chance a Democratic senate might be able to impose someone less horrendous. Millions of people will stand to suffer more if he is confirmed and less if he is rejected. The American political system is structured in such a way that Anthony Kennedy became an immensely powerful individual as a swing voter on a court. Replacing that swing vote is more important, to everyone, than doing justice to the allegations of these women.

For too long, too many of us–myself included–have believed that the parties still cared about defending the fairy story that the court is an apolitical institution. It’s now transparently political, and they’re going to have nakedly obvious political fights about it, and the #MeToo movement has now become a big, fat pawn in their slugfest. In the long-term, this will make #MeToo an even more partisan issue than it was before–Republicans will now associate the movement with efforts to block their judge, and they will be even more resistant to its messages. Democrats will support it, but in a reflexive and dogmatic sort of way, because it happens to be targeting someone they already oppose for ideological reasons. #MeToo will increasingly just become part of the culture war, and the whole purpose of the culture war is to whip up anger in base voters to drive turnout. No one ever intends to resolve the culture war debates, because once you resolve them they become useless for mobilising voters. Instead, what we usually see is that the quality of the discourse in these debates deteriorates over time, becoming simplistic, reductive, and unhelpful.

Given the very real need to update and clarify our sexual norms, this fate–in which, for political reasons, the left and the right become ever more deeply entrenched in increasingly reductive and conflicting positions about sex, leaving people in perpetual conflict and confusion about what’s okay–is far from optimal. But it’s now clear in hindsight that once #MeToo became about targeting powerful celebrities, it was only a matter of time before it attached itself to a deep political conflict and became nakedly associated with party politics and the wider culture war. Whatever hope there might have been for constructive, productive conversations about gender has faded away. Long after Kavanaugh is either confirmed or not confirmed, we’ll have to live with the reality that Republicans are now reflexively committed to enabling the rancid behaviour we associate with frat boys at drinking parties, because that is what “defending conservatism” now means to them.

We might win the fight to stop Kavanaugh, and that will be great for the court. But we’ll see our gender conversations become a little shallower along the way. It’s a price we must pay. Because for some reason, that one Supreme Court justice really does have that much power.