The Kavanaugh confirmation debacle has justifiably left people angry. We must continue to process the allegations against Kavanaugh, the limitations imposed on the FBI investigation, and the suppression of documents by the White House and Senate Republicans. But it is also time to get serious about reforming the Supreme Court.
The president and Republicans in the Senate have installed a radically conservative justice who was credibly accused of sexual assault and lied to the Judiciary Committee about matters ranging from his activities in the Bush White House to the meaning of his high school yearbook. They pressed ahead with a supremely flawed candidate to complete the right-wing takeover of the Court that has been a central Republican political goal for at least fifty years.
The Court is now indisputably a political institution in which Republican justices will move the law inexorably to the right in furtherance of the Republican agenda. By further weakening public confidence in the Court’s independence and neutrality, Republicans have damaged its legitimacy. Congress must begin to repair the Court.
Proposals for essential reforms have been floating around for years, including adoption of a code of conduct for Supreme Court Justices, reform of recusal practices, limits on financial holdings and outside appearances, better policing of conflicts of interest, and the adoption of 18-year terms. Legislators, including Rep. Louise Slaughter (D-NY) and Sen. Elizabeth Warren (D-Mass), have included many of these reforms in legislation.
The elevation of Kavanaugh brings several of these reforms into play, but two stand out. First, Congress must impose a code of conduct and method for enforcement on Supreme Court justices, if the justices will not do it themselves. Judge Henderson, acting as Chief Judge of the D.C. Circuit because of Judge Garland’s recusal, referred to Chief Justice Roberts more than a dozen complaints filed against Judge Kavanaugh based on the confirmation process. Complaints filed against federal district court and court of appeals judges can be dismissed by the chief judge or referred to the circuit’s judicial council for fuller consideration. Henderson, apparently, thought these complaints were sufficiently meritorious to send forward.
It is common to ask the Chief Justice to refer the complaints to another circuit. The complaints were sent to Roberts before Kavanaugh’s swearing in. After Kavanaugh was sworn in, Roberts, in what appears to be a ministerial act, referred the complaints to Chief Judge Tymkovich of the Tenth Circuit. Tymkovich will almost certainly dismiss them now that Kavanaugh sits on the Supreme Court. Because the code of conduct and disciplinary process that govern court of appeals judges do not apply to Supreme Court justices, Kavanaugh will escape accountability. The law must be changed.
Congress also must address the issue of recusals. Currently, each justice decides whether or not to recuse him or herself from a matter and there is no requirement that a justice offer reasons. The bar and public, therefore, often can only speculate about a justice’s reasoning. That’s troubling since the Court’s legitimacy depends entirely on the justices’ written explanations of the bases for their decisions. Compounding the concern, the Chief Justice has suggested that justices are not bound by the existing recusal statute. Ideally, the Court should itself articulate clear standards and an improved process for recusal, but its failure to do so places the burden on Congress to act.
Kavanaugh’s angry, intemperate, and partisan tirade before the Judiciary Committee requires close monitoring of his recusal decisions. He denounced the Clintons, Democrats, and groups on the left, creating the appearance, at least, that he cannot fairly adjudicate claims involving them. While Congress faces legitimate separation of powers concerns in this area, it must act to the full extent of its constitutional authority to ensure that justices apply clear standards transparently when faced with recusal decisions.
Progressives also must begin thinking long term about expanding the Court. This change cannot happen until Democrats control the White House, the House, and 60 votes in the Senate. For years, expansion of the Court has been viewed as a third rail of judicial reform. FDR’s Supreme Court expansion plan is widely dismissed as a political failure, even though it succeeded in pressuring a voting change that resulted in the approval of New Deal legislation. Conventional wisdom morphed into a norm that has held it unacceptable to manipulate the number of justices to achieve political ends. Doing so, the argument goes, would politicize and, therefore, delegitimize the court.
While the conventional wisdom wasn’t looking, however, Mitch McConnell blew right through that norm. In ignoring Merrick Garland, McConnell and his Republican majority determined that a court of eight justices served Republican political interests far better than the statutorily prescribed court of nine. They manipulated the number of justices to serve political interests. Moreover, a number of Republicans insisted that if Hillary Clinton were elected president, they would continue to insist on an eight-justice court. There is little doubt they would have done so and would have continued to let the number shrink further, rather than confirm a Clinton appointee.
The Kavanaugh confirmation completed a 50-year campaign to capture the Court for conservative interests. In response to Brown v. Board of Education and other Warren Court decisions, conservatives pushed back. Nixon, reacting both to the civil rights movement and anti-war activism, searched for “law and order” candidates. Soon-to-be-justice Lewis Powell in his infamous memo urged the Chamber of Commerce to mobilize the courts on behalf of business interests. Ronald Reagan picked justices who would promote his political agenda of opposing abortion, cutting back on civil rights, and promoting business interests over those of employees and consumers. Since then a well-funded coalition of business interests and cultural conservatives, spearheaded by the Federalist Society, has loaded the court with the most conservative majority in its history. Progressives need to be equally aggressive in restoring independence to the court.
Now is the time for progressives to pursue vigorously an agenda that will begin to restore accountability and legitimacy to the Supreme Court.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.