Kavanaugh, the Supreme Court, and the Confirmation Wars - The Atlantic - 0 views
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In fact, both sides have incrementally escalated at every stage since at least the late 1980s. At no point did either step back and sue for peace. The erosion of the norm of a relatively modest Senate confirmation process took place because both sides calculated at every stage—probably rightly—that the other would take the next incremental escalatory step if roles were reversed. They calculated that base voters would sooner forgive escalation than they would forgive weakness. They calculated that they could get away with escalation. And they calculated that they could lie about what they were doing—flamboyantly and without shame—and get away with it. And so they did.
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Whether the war for the courts is more cause or effect of the increasing ideological uniformity of appointments is a complicated question. In all likelihood, cause runs in both directions. That is, we fight more over courts because of an increasingly ideological sense of how courts should operate, and in turn, our fights over the courts tend to entrench our increasingly ideological sense of how courts should operate
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In the world that I argued for, liberal senators would support Kavanaugh. They would do so because he is qualified, because the decision to give President Trump the authority to select judges was made when the electorate chose Trump over Hillary Clinton, and because the cost of opposing Kavanaugh—that Republican senators would oppose similarly qualified judges when the presidency is in Democratic hands—exceeds the possible benefits of opposition. This set of assumptions was driven by norms: not by law, not by the Constitution, not even by Senate rules. It was just the way things worked, because everything worked better if everyone behaved that way. And everyone behaved that way because everyone had confidence that those on the other side would behave that way as well.
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Polarization put cracks in that confidence. And once people no longer believed the other side would observe the norm, the norm collapsed remarkably quickly.
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here’s the problem: The breakdown of the norms that have traditionally induced restraint in the judicial-confirmation process will not end with the creation of polarized judicial nominations and confirmations. It will run deeper. A highly polarized Senate in interaction with a winner-take-all presidency picking judges on the basis of raw power alone and creating party factions on every court in the country is a contagion that will spread.
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Already, in response to the retirement of Kennedy and the nomination of Kavanaugh, some Democrats have begun talking about court packing. And why not? There’s no magic to the number nine
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Even the Supreme Court is not immune from a much more activist Congress. We tend to think of the Supreme Court’s jurisdiction as vast, but it’s only vast because Congress makes it so.
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If Congress doesn’t want the Supreme Court to hear abortion cases, it could strip it of appellate jurisdiction over them—or at least, it could try.
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In a world of polarized partisan control over the gateways to courts and thus partisan factions on the courts themselves, I can see no reason why these things won’t eventually happen. And I won’t even be able to make a principled argument that they shouldn’t happen.