The winners and losers of the Supreme Court confirmation

The winners and losers of the Supreme Court confirmation
© Pool

“Horror has a face … and you must make a friend of horror.”

When the character Colonel Walter Kurtz spoke those words in the film “Apocalypse Now,” he described the secret to his success, his epiphany that decency and humanity no longer have a place in war. His words could well describe the aftermath of the Supreme Court confirmation of Brett Kavanaugh. As Kurtz explained, the key is to transcend morality and allow people “to utilize their primordial instincts to kill without feeling, without passion, without judgment, because it is judgment that defeats us.”

ADVERTISEMENT

Once the “most deliberative body in the world,” the Senate has finally reached its apocalyptic moment of total political war without judgment. Kavanaugh and his chief accuser, Christine Blasey Ford, are both faces of the horror of a process designed to release people from any consideration of fairness or empathy, to leash the primordial instincts of voters. That, perhaps, will forever change our confirmation process.

For weeks, people enjoyed uninhibited rage on both sides. The original confirmation hearing itself was virtually devoid of substantive discussion of Kavanaugh’s jurisprudential views. Citing the Ginsburg rule, Kavanaugh repeated judicial platitudes about respecting precedent while declining, as did prior nominees, to give direct answers. I have long criticized the Ginsburg rule and the modern confirmation process. These hearings, however, began badly and ended as a nightmare.

Republicans hit a new low on the standard of disclosure by allowing the White House to withhold an unprecedented amount of material from Kavanaugh’s record. Democrats then joined the race to the bottom by withholding Ford’s allegation until the last minute. Both sides then tore into each other and the witnesses. Senators in both parties declared that they believed either Ford or Kavanaugh before any testimony was heard. Senator Cory BookerCory Anthony BookerIowa GOP swipes at 2020 Democrats' meat positions as candidates attend annual Steak Fry Booker aide sounds alarm about campaign's funding 2020 Democrats defend climate priorities in MSNBC forum MORE (D-N.J.) maintained that it really no longer mattered if Kavanaugh was innocent or guilty, while Senator Mazie HironoMazie Keiko HironoDemocratic senators introduce bill to block Trump 'public charge' rule Overnight Health Care: Juul's lobbying efforts fall short as Trump moves to ban flavored e-cigarettes | Facebook removes fact check from anti-abortion video after criticism | Poll: Most Democrats want presidential candidate who would build on ObamaCare Lawmakers urge DNC to name Asian American debate moderator MORE (D-Hawaii) said that she would weigh Kavanaugh’s views on the Constitution in deciding whether to believe his denials of being a sexual predator. On the other side, Republicans imposed a five minute rule that made the questioning by a female prosecutor into a national joke.

The biggest winners?

First, Judge Kavanaugh. For those who insisted he was fundamentally damaged, it is worth noting that he is now about to become Justice Kavanaugh and will cast one of nine votes on the highest court in the nation. Confirmation is a vindication of sorts but certainly is not an expungement. Yet, it is an opportunity to create a legacy in decades of decisions, and he is likely to move the court to the right and to reverse some of the legacy of Justice Anthony Kennedy. This controversy may be the start but it will not be the end of his Wikipedia page.

Next, Professor Ford. While she came forward reluctantly and did not appear to seek fame or its benefits, famous she is and benefits will come. While Democrats insisted that she has nothing to gain, she could gain considerably as a result of her taking a stand before the Senate. She is now a celebrity and likely will be buried in book and movie deals. She has more than half a million dollars waiting for her on GoFundMe. (I have raised prior concerns over this new element to litigation, as witnesses receive windfalls after promising to testify for or against national figures, as seen in the cases of Michael Cohen and Andrew McCabeAndrew George McCabeMcCabe says he would 'absolutely not' cut a deal with prosecutors We've lost sight of the real scandal Former Obama officials willing to testify on McCabe's behalf: report MORE.) Ford has gone from a professor at Palo Alto University to a social icon.

The biggest losers?

First, Judge Kavanaugh. He will remain an asterisk justice. He may bury it with a long line of opinions but he will never entirely erase it. Half of the country is likely to remain firm in its view that he assaulted Ford and committed perjury on the allegations. His was the type of bruising fight that leaves a deep lasting injury. After his own confirmation controversy, Judge Robert Bork retired from the courts. Justice Clarence Thomas is widely viewed as adopting silence during oral arguments in the aftermath of his hearing. Confirmations generally are seen as not just the culmination but the celebration of a career leading to the Supreme Court. This one, however, was a concession to raw and ugly politics, ending on a final vote on party lines, with only one defection on either side.

Next, Professor Ford. She has now entered the realm of personified politics, more of an object than a person for both sides in waging this war. She will remain either the hero or the villain in the eyes of millions, an instantly recognizable face with instantly strong emotions for people on each side of the controversy. The minute someone leaked her letter, against her express wishes, she entered that realm of personalities who are treated like public domain as universally owned objects.

The greatest loser, of course, is clearly our confirmation process, which was reduced to the level of decorum and deliberation one would see in an episode of “Keeping Up with the Kardashians.” Both sides decided to unleash our primordial instincts, and it will be hard to get people to accept prior standards of order or fairness in the process.

Confirmations have now become politics by other means and, as Kurtz said, “perfect, genuine, complete, crystalline, pure” in their savagery. Of course, most partisans in this controversy saw it as a political opportunity. It is now up to the majority of Americans whether this is what we will accept in the future. We can either demand reform of the confirmation process, or we can live with the horrors of primordial politics.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.