So here we are again. A deeply controversial, ultraconservative nominee is confirmed to the Supreme Court. There was a pitched battle; the fight was long, bruising, and hard. We’ve reached a moment of reflection and some exhaustion; it’s also the moment when traditionally, progressives have packed up their tents and gone home.
So will it be any different this time? It can be, and it should.
We are in a political climate that is already transformed, after another year of relentless Trumpism, from the one in which Neil Gorsuch got his successful shot at the high court. Not only that, but the battle over Brett Kavanaugh has plumbed a deep well of anger and pain that was waiting to come to the surface.
Thousands of people marched and demonstrated in opposition to Kavanaugh. That his candidacy coincided with a maturing #MeToo movement certainly helped. But the outpouring was a lot like another mass uprising we saw right after Donald Trump’s election, the Women’s March, and it is similarly inspiring.
I now believe that for a new generation of voters—especially women—the Senate’s catastrophic handling of this nomination and its contempt for Dr. Christine Blasey Ford’s act of national witness is a defining moment, when business as usual will no longer do.
For 40 years, the right wing has sent its voters to the polls with the federal courts as a priority. It also built a machine for manufacturing and marketing the kind of nominee exemplified by Brett Kavanaugh: conventionally credentialed, politically connected, and partisan to the core.
Progressives will never have an appetite for cookie-cutter nominees or the conformity-imposing systems that build them. But we have the power as voters to make the courts an issue and a matter of real accountability and electability for Senators, this year, in 2020 and beyond.
We can also refuse to let the sham confirmation process for Kavanaugh be normalized. We can demand that the next Congress subpoena the vast bulk of Kavanaugh’s White House records that Senate Republicans refused to request.
Similarly, since Donald Trump and Mitch McConnell would not let the FBI do its job in investigating Kavanaugh, others will have to step up to learn the truth about allegations of his sexual misconduct. Congress should hold hearings to which the many, many witnesses the FBI never interviewed can be called to testify. It should probe Kavanaugh’s misleading and untruthful statements, and find out exactly how the President handcuffed the FBI. What is discovered may not lead Kavanaugh to recuse himself from a case, or cause his removal from the Court. But it’s the right thing to do for the American people, and for the survivors whose stories were swept under the rug.
Survivors of sexual abuse also need to know that this kind of disaster can’t happen again. A procedure must be put in place to help Senators handle explosive allegations against nominees with respect, fairness and thoroughness. And the presidential vetting process for all courts clearly needs to be overhauled.
Supreme Court battles undoubtedly grab the most headlines, but as advocates we need to show that all courts count. A tidal wave of dyed-in the-wool conservative judges has been flowing into the federal courts for more than a year now.
Some of these lower-court nominees are not just conservative, they are inhumane in ways that we rarely see. One circuit court nominee wrote ardently in favor of the death penalty for minors. He argued against providing immigrant detainees with sleeping mats, because too few people could then be packed into a room. These views should be anathema in 21st century America: and every person should think about them when they step into the voting booth next month.
So yes, this is no time to pack up the tents. Kavanaugh has helped us to see all too clearly what the stakes are for women, for workers, for racial equity, LGBTQ Americans, and the environment when the right captures our courts – and those stakes are far too high. We have arrived at this clarity through a painful process, but we have arrived, and with a midterm election right around the corner. And that’s just the beginning.