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Kavanaugh Does Not Threaten the Court’s Legitimacy—Except Among Liberal Elites

Ubiquitous now among opponents of Brett Kavanaugh’s appointment to the Supreme Court is that his confirmation, and the confirmation process, will harm the “legitimacy” of the Court. In this concern, however, liberals only continue to emote their disapproval of Kavanaugh’s appointment; existing evidence suggests the Supreme Court enjoys such a deep well of public support that few isolated events, even as publicized and bitter as the last two weeks, can shake public support for the institution. What ostensible liberal concern for the Court’s legitimacy is really about is the expected shift on the Court threatens their two-generation long grip on the Court, and so threatens its legitimacy in their eyes.

To be sure, it’s not at all inappropriate to worry about the Court’s legitimacy in the public’s mind. As Hamilton opined so long ago in Federalist 78, unlike the executive and legislative branches, courts have “neither force nor will, but only judgment,” and so the judiciary is the “least dangerous branch.”

Yet it is a fair question whether Hamilton’s prescience saw much beyond the antebellum Supreme Court. The century-long incorporation of most of the Bill of Rights against the states via the Fourteenth Amendment, as well as the fabrication of non-textual rights, the executive and legislative branches’ reflexive deference to Court decisions, plus the deep well of support the Court has among wide swaths of the public, has made the Court a powerful institution. So powerful, in fact, it might be more appropriate to ask, as have Washington University political scientists James Gibson and Michael Nelson, whether the U.S. Supreme Court can have too much legitimacy.

Regardless of the answer to this normative question, there have been several bitterly contested confirmation battles in the last generation. We tend to forget now the bitterness of Justice Alito’s confirmation process. Despite the bitterness, however, Alito’s confirmation left little permanent impact on the Court’s legitimacy. Justice Thomas’s confirmation battle as well, similar in obvious ways to Kavanaugh’s confirmation fight, did not permanently dent the Court’s legitimacy. Nor did Robert Bork’s unsuccessful nomination fight before that.

This is not to suggest the Court can forever take sustained hits with no impact at all on its legitimacy. Indeed, in their study of Alito’s confirmation, political scientists James Gibson and Greg Caldeira suggest the Court’s legitimacy can decrease when people perceive it as just another political institution.

As in the case of Thomas, however, questions about the personal behavior of nominees outside of the courtroom actually do not feed the narrative of a political Court.

If anything, the ironic result of the Democrats’ attack on Kavanaugh’s personal behavior while young might actually have crowded out attention to their earlier criticism of Kavanaugh being a partisan judge. The result is the Democrats’ focus on Kavanaugh’s personal life at the end of the confirmation process might very well leave the Court’s standing higher after his confirmation than it would have been if they kept sustained focus on his ostensible partisanship.

At any one time the Court’s “legitimacy” is a combination of its diffuse support – the public’s broad support for the institution in general – and support for the Court in response to a specific decision or event then at the front of the public’s mind.

The combination of both diffuse and specific support usually augers majority support for the Court at any one time.

In the nomination fight for Kavanaugh, for example, specific support for the nominee was split about even, which was low relative to net support for other nominees in recent decades. But not everyone’s support for the Court rises or falls based on every specific episode. The Court retains diffuse support even among many of those who oppose Kavanaugh’s appointment. Between those who support Kavanaugh in particular, and opponents who nonetheless continue to support the Court in general, the Court almost surely continues to hold a position of esteem in the eyes of everyday Americans.

There is no crisis of legitimacy for the Supreme Court among the American public as a whole. There is a crisis of legitimacy among liberal elites, however, particularly those engaged in law, public policy, and journalism. And understandably so. They have long believed the Supreme Court their exclusive preserve in the American separation-of-power system.

Since at least the “switch in time that saved nine,” liberals have romanticized the Court as their domain. Presidents and Congresses might come and go, but the Court was always theirs. Conservatives have invested tremendous energy to make the judicial branch reflect their views, and their success in the courts assaults the very core of liberal self-identity in America, and correspondingly undermines core liberal conceptions about the American political system.

For liberals, the fight over Kavanaugh was not simply about future Supreme Court decisions. It was, to them, about their ownership of the Supreme Court, something they had taken as an unquestioned birthright. This is why the fight over Kavanaugh was from the start so personal for liberals. Indeed, given what’s at stake, any of the potential nominees on President Trump’s short list would have received the same visceral opposition from liberals that Kavanaugh received. Losing control of the Court, even if meaning control is only up for grabs, is a political revolution in the establishment liberal mindset.

To be sure, whether Kavanaugh’s confirmation actually is the game changer that it could be depends wholly on Chief Justice Roberts, the new median vote on the Court. The mere possibility, however, threatens what liberal elites perceive as their birthright ownership of the judiciary. This is why this nomination was so personal to them, and this is why this confirmation threatens the legitimacy of the Court in their eyes. But “legitimacy” for them really only means continuation of the Court’s long-time central orientation around liberalism.

Reader Discussion

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on October 09, 2018 at 10:29:46 am

An interesting argument and possibly correct; however, there is one area in which "legitimacy" will surely be put to the test and in my estimation was one of the underlying objectives of the Schumer strategy - Abortion *rights*.
Should Roe v Wade be overturned, or the present understanding of "unlimited" abortion under the guise of "women's health" be restricted THEN the Left will initiate another campaign aimed precisely at "delegitimizing" both the "diffuse" and "specific' support the essayist assures us the Court enjoys.
Having a *known* harasser (Thomas) and a *known* rapist (Kavanaugh) cast potentially deciding votes on the issue will serve as an ignition point for the Democrat Party and the Media ( a redundancy, of course) to instigate a war of words the likes of which we have not yet experienced and all geared toward a) calling into question the propriety of the decision and b) energizing their political base with the false assertion that the Democrat party is the sole defender of women. Thus, we will see a continuation, indeed an expansion of the Democrat driven culture war.

Do they hope that they have so intimidated the new Associate Justice that he will recuse himself or will rule in a manner more to their liking?

In any event, the 'legitimacy" of the Court is not something that the Democrat Party would continue to respect should decisions go against them.
I doubt that there will be another "switch in time" this time.

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gabe
on October 09, 2018 at 11:30:36 am

Oh, I see, lying under oath is ok if Republicans do it. Gotcha.

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excessivelyperky
on October 09, 2018 at 13:07:18 pm

Shorter version: like a toddler who is told No, the Left threw itself onto the floor kicking and screaming in a fit of red-faced rage.

What happened here is that the Left was told No. All of their various "reasons" were revealed to be mere pretexts in service to their will, the denial of which is the only explanation for their increasingly violent and ridiculous antics. And this was after being told No on Hillary in 2016. That's enough to send any toddler into juvenile delinquency.

Just wait until they retake Congress and the Oval Office and dare the Court to block their March to the Sea. Then you'll see what "legitimacy" means to them (hint: it means absolutely nothing beyond expediency, as Rogers intimates).

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QET
on October 09, 2018 at 14:13:17 pm

Rogers dismisses arguments questioning how Kavenaugh undermines the court's "legitimacy." And, true, these are sour-grapes type arguments. But they are not only that.

Imagine it's 2021 or thereafter. Trump, having showered himself in ignominy, loses in a landslide and takes the Republican Party down with him. Could the Democrats then impeach and remove Kavenaugh? The groundwork is already laid. No, I don't expect they'd do so immediately; they'd wait until Kavenaugh did something questionable, and use that as a trigger to dig up all the old doubts about his temperament and bias.

Now, imagine you're Kavenaugh, KNOWING that there's a conspiracy of people gunning for you. That knowledge might not alter your willingness to vote with the majority (where it counts), but it might deter you from bold pluralities, dissents, or concurrences. It might constrain your speaking schedule and extracurricular writings. It might even constrain your choice of clerks. And it might influence a choice to recuse.

Imagine living under constant scrutiny, knowing that people are looking to find fault, knowing that even people you might have thought were your friends might turn on you any instant they think they have a temporary advantage. Heck, he might even come to understand the plight of women.

Not likely, I grant you, but within scope of possibility.

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nobody.really
on October 09, 2018 at 14:49:57 pm

Imagine living under constant scrutiny, knowing that people are looking to find fault, knowing that even people you might have thought were your friends might turn on you any instant they think they have a temporary advantage.

Comrade!

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QET
on October 09, 2018 at 18:47:38 pm

More Bs from nobody!

" Heck, he might even come to understand the plight of women. "

Who says he does not?
Certainly judging by the number, caliber and yes, even varied political leanings of his law clerks, one could argue that he does quite well in that department.

Stick to the facts - NOT THE STINKING DEM PARTY LINE.
At times, you approach Little Miss Perky (above) with your regurgitation of the Dem party line.

As for your legitimacy question:
1) If any legitimacy concerns arise, KNOW FULL WELL that it is not of Kavanaugh's doing but of the Demented Democrat Party and
2) You provide ample evidence that my month old thesis regarding the tertiary objective of the Democrat Party was to DE-legitimize Kavanaugh (and by extension Thomas) should any decision on abortion unfavorable to the radical feminists (both of the male and female variety) and THUS the Democrat Party may continue to be viewed as the Last best hope of women. Funny thing is - an awful lot of women are having no part in it and have seen the Democrat Party for what it is: vicious, mendacious and disdainful of any that would dare oppose their "long march" to utopia.

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gabe
on October 09, 2018 at 18:56:24 pm

REALLY????

Lies!!!
I am quite happy that one of your character and imagination is capable of perceiving falsehood.
That is a good start.
However, look again. could it be that the one who "misspoke" concerning her "fear of flying", her "second door = fear" charade, her own diary, her own therapists notes, the date, YEAR (changed three times), location, number of witnesses, etc etc etc COULD BE THE ONE GUILTY OF LYING?

Gee, I wonder how one could come up with such an anti-woman conclusion based on such paltry evidence.

I am happy to see that the "puppeteers strings" that some other commenter attributed to you are working effectively. I only wish I were able to have made such an observation myself but I second it.

Question:

Do Leftist Loonies never tire of repeating the same old lies.
Do they really believe that a lie repeated endlessly and vociferously will eventually come to be viewed as true?
If that were the case in the past, such a dominance of the political mode of expression may be coming to an end.
dear Little Perky however is stuck on "regurgitate"

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gabe
on October 09, 2018 at 19:17:38 pm

Oh and while *we* are on the topic of lying, get a kick out of this one, kiddies!

In todays NW section of the Seattle Times, the lede is:
(paraphrasing here for space limits)

No charges against two POLICEMEN ACCUSED OF RAPE / ABUSE by a
WOMAN WHO HAD FOUR TIMES PREVIOUSLY FALSELY CLAIMED RAPE after a Craigslist sexual encounter.

Funny thing is, along with all the other Democrat Party Media adjuncts, the past month has seen numerous stories / editorials exhorting us to "Believe Women."

Amazing isn't it! The capacity that the Left has for SELECTIVE Memory and a complete lack of embarrassment and self awareness.
I guess after a time, the lies being so prevalent, so multitudinous that the Left has abandoned even the pretext of fairness and recognizes that since they cannot keep their narrative consistent, they may as well go all in with the lies and never retract or seek to modify a previously made general slander.

That is modern media and many such as *perky* willingly and voraciously consume this Democrat dung!
Oh well, I suppose there is a value in providing the citizenry with *pre-seasoned* bird cage liner!

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gabe
on October 10, 2018 at 11:00:57 am

"The plight of women;" really?

But on a serious note; I'd support successfully impeaching any one of our Supreme Court justices for good reason, bad reason or no reason at all; just to show it can be done and "pour encourager les otres."

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EK
on October 10, 2018 at 12:26:39 pm

Hey, we gotta water the tree of liberty with a little blood now and then. Just so long as it's your blood, not mine, amirite?

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QET
on October 10, 2018 at 14:29:54 pm

I also note that Roger's "existing evidence" regarding the legitimacy of the Supreme Court is 9 years old and is offered by academics who look suspiciously like swamp creatures themselves.

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EK

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.