The United States Supreme Court is one of the most influential institutions of the US and a hallmark for the rest of the globe. When the US was set up by its Founding Fathers, the judiciary was created as an impartial and independent pillar upon which liberty rests. Yet, today the impartiality and independence of the Supreme Court is undeniably at risk upon the appointment of Brett Kavanaugh as the newest addition to the nine judge panel.
In order to guarantee impartiality and independence of Supreme Court justices, they serve a lifelong tenure, remaining in office in accordance of “during good behavior” with the US Constitution. As a result they will long outlast the president by whom they were appointed and have a substantial impact on the evolution of the law. After-all, due to the exceptional rigidity of the US Constitution, the laws are highly resistant to being amended – only 27 amendments have been ratified since its creation in 1787 – leaving the task of developing the law largely up to the judiciary. Hence, the appointment of a Supreme Court justice must be a well thought-through decision. One must have absolute certainty that the chosen judge possesses the unique attributes that would qualify them to be a fit candidate. Among others, those attributes include impartiality, a clear and un ambivalent style of argumentation, courtesy to and consideration for one’s colleagues and profession, intellectual capacity, and an instinctive and immediate understanding of the human implications of the decisions made by the Supreme Court.
Upon Mr Kavanaugh’s appointment by President Trump, a former high-school classmate of the Justice, Christine Blasey Ford, accused him of having sexually assaulted her in the summer of 1982. Both Mr Kavanaugh and Mrs Ford testified at the Justice’s hearing in front of the US Senate – a hearing that was meant to help determine the credibility of the opposing parties. Yet, with no further evidence but Mr Kavanaugh vehemently denying the accusation and Ms Ford giving an emotionally shocking testimony, the 36 year-old case remains a ‘He said, she said’ – scenario — and with senators already having had made up their mind before hearing the testimony the outcome had evidently already been set in stone. For instance, despite announcing that Ms Ford’s testimony was “credible”, Senator Joe Manchin and Senator Susan Collins both voted in favor of Mr Kavanaugh’s approval.
Nonetheless, while the assault remains questionable due to lack of evidence, Mr Kavanaugh’s own testimony should have indisputably disqualified him from a seat on the US Supreme Court. For one, he demonstrated complete incapacity of giving a coherent and non-ambivalent argument. When asked questions about his drinking habits in high school, he desperately attempted to avoid answering by countering with questions, such as whether the inquiring senator had had any drinking habits in high school themselves—a behavior not only inappropriate but utterly irrelevant. The senators had to repeatedly ask their questions, while Mr Kavanaugh consequently continued to interrupt them in a disrespectful and resentful manner in no way fitting for a Supreme Court justice, further displaying his total lack of appreciation for colleagues, superiors, and the whole institutions of the Senate and the Supreme Court alike.
“Liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments” Alexander Hamilton, Federalist Paper #78
Moreover, Mr Kavanaugh blatantly lied to the Senate about several aspects of his high-school years– He claimed that drinking at 18 was legal in Maryland, when in fact by the time he turned 18, the drinking age had been changed to 21. Other lies regarded the true meanings of phrases written in his yearbook.
For instance “Devil’s Triangle”, which he claimed to be a drinking game, but in reality is known as slang for intercourse between a woman and two men. Mr Kavanaugh demonstrated a tendency to change the meaning of words and phrases as he found most convenient for his own purposes – a habit that if displayed by a Supreme Court justice could not only question every single ruling of the Court but become a danger to the entire legal landscape. After all, the fact of a teenage boy drinking underage is indisputably not extraordinary in the US, but a Supreme Court justice known to tell lies most certainly is. The fact that he refuses to affirm his collaboration in a possible FBI investigation about the alleged assault does not help his credibility on that matter either.
Furthermore, what appears to be the most crucial indication of an inadequate nominee was his evident lack of impartiality and apparent hatred for the democratic political party.
He claimed that the allegation against had been a “orchestrated political hit, fueled with apparent pent-up anger about President Trump”, that it was all “revenge on behalf of the Clinton’s” and funded by “millions of dollars and money from outside, left-wing opposition groups”.
An “orchestrated political hit, fueled with apparent pent-up anger about President Trump”, that it was all “revenge on behalf of the Clinton’s” and funded by “millions of dollars and money from outside, left-wing opposition groups”.
Mr Kavanaugh’s outright accusation of the opposing political party to have been conspiring against him, creates not only the impression of partisanship but quite certainly confirms it. As a result any ruling made by the Supreme Court will be questionable and particularly any ruling with a 5:4 outcome and Mr. Kavanaugh as one of the deciding factors will be controversial. The judiciary of the US was created as an independent and impartial institution. Their lifelong tenure and fixed salaries are meant to ensure that it operates outside of the political spectrum. While it is certain that any justice has their own political views more or less corresponding with one or the other of the political parties, a justice should never exhibit such personal hatred towards any particular group of people.
With Kavanaugh on the Supreme Court the entire legitimacy and trustworthiness thereof will be in jeopardy, ultimately endangering the liberty of the US Citizens—just as predicted by Alexander Hamilton. Even though the first hearing of Justice Kavanaugh on October 9th occurred without any controversy, eventually, the newly composed panel with a majority of right-leaning justices will no doubt use their majority to tackle controversial issues, such as abortion, affirmative action in universities, or the death penalty. According to the Economist, Mr Kavanaugh’s “record suggests he’ll be receptive to county clerks, bakers, pharmacists and other who say their conscience prohibits them form doing business with gay and lesbian people.” With no skill set uniquely qualifying Mr Kavanaugh compared to other potential right-leaning candidates, it is unclear why the Senate chose to affirm his appointment despite his apparent incompetence. It is clear, however, that due to the Supreme Court’s influence and its justice’s lifelong tenure, Justice Kavanaugh’s appointment will have a major impact on the development on the law in the United states.
Illustration by Katarina Ružič Koželj.