By Jim Malatras | October 11, 2018

As the president’s Supreme Court nominee sat bottled up for weeks in the Senate Judiciary Committee because of charges of wrongdoing leveled against him, and after a review by the FBI, the Senate Republican leader had had enough, claiming the charges were “unsworn, irresponsible, and untrue.” It was time to vote on the president’s pick.

The year was 1954; the Senate Republican leader was William F. Knowland; and the nominee was the legendary Chief Justice Earl Warren. Warren guided the Supreme Court leftward with school desegregation; right to counsel; one man, one vote; and countless other cases that still resonate in the country. First nominated by President Eisenhower as a recess appointment, Warren was eventually confirmed on March 1, 1954, via voice vote with no dissent in the Senate. The vote took eight minutes. Even so, Warren faced controversy and a Senate Judiciary Committee hearing in which he was accused of, among other things, being under the control of lobbyists in California. In large part due to the accusations against him, the Warren confirmation was the first time the FBI was asked to conduct a check and issue a report on any Supreme Court nominee.

What’s past is often prologue.

The recent confirmation process of Brett Kavanaugh to the Supreme Court captured the American public’s attention, reigniting controversy over the legitimacy of the Supreme Court in our system of government. The controversy stems, in large part, from the highly politicized and polarized confirmation process. But, what should we make of what just happened vis-à-vis the court’s standing as an impartial arbiter of justice in our society? Put aside pundits who have suggested Kavanaugh’s confirmation is the end of the court as we know it, which may be more Chicken Little than reality. However, potential issues lurk for the Supreme Court in the wake of the turbulent confirmation process.

The architects of our system of government proposed a radical concept of representative democracy. It included an independent Supreme Court with unelected justices that serve lifetime appointments (or, as the Constitution says, they serve during good behavior) in order to shield those justices from the influence of political officials who nominated and appointed them, and to serve as a backstop against the whims of the people. But the antidemocratic design made the judiciary the weakest of the three branches of government. Alexander Hamilton (or the guy Lin-Manuel Miranda made famous) wrote of the judiciary in Federalist 78, it has “no influence over either the sword or the purse.… It may truly be said to have neither FORCE nor WILL, but merely judgment.”

Without the traditional levers of raw political power of the other branches, the Supreme Court relies extensively on legitimacy, or the belief that Americans have that it is the final arbiter of governmental and constitutional disputes. For the Supreme Court to be a relevant force of authority in our system of government, judges must appear above the political fray. They cannot appear political or subject to appeals from those who appointed them. Hardly made for TV, confirmation proceedings often result in bizarre verbal acrobatics in which nominees painstakingly avoid any whiff of political considerations, knowing the court’s legitimacy rests on its reputation as an independent, apolitical legal institution.

For decades the court built up credibility to be the final constitutional authority on many issues, even sensitive, highly political ones such as desegregation, the death penalty, campaign finance, and marriage equality. The Supreme Court thrust itself into the 2000 presidential election and was the arbiter of who ultimately won. The most important thing, however, was that the nation complied with the court’s decision. The court’s institutional legitimacy in our system of government was secure.

But the very structure of the confirmation process creates an uneasy tension. As the brilliant political scientist John Massaro said, the Supreme Court by its very construct is supremely political. The president nominates and the Senate confirms. Presidents and senators are politicians elected with constituencies, ideologies, and policies they support. President Trump may have been more explicit about his conservative Federalist Society litmus test, but he is hardly the first — Democrat and Republican administrations have both pushed for a certain type of judge aligned to their ideology.

What is key is that the nominee maintains an air of impartiality in an inherently political process.

Judge Kavanaugh’s confirmation was not the first highly partisan nomination fight. Often, the fights are more intense when the nominee is more ideologically extreme. Ronald Reagan’s nomination of Robert Bork met strong opposition with TV ads, including one from the People for the American Way narrated by actor Gregory Peck. Bork’s nomination was defeated 42-58.

The polarized process this year was, in part, exacerbated by the fact that the Senate changed the rules to allow a bare majority to confirm a Supreme Court nominee, making Brett Kavanaugh the closest vote in history — and a vote largely along party lines. Historically, the sixty-vote rule required bipartisan buy-in of judicial nominees. If the “nuclear option” remains, we’re likely to see greater intense partisan hand-to-hand combat over more polarizing nominees — a trend already emerging with other votes, like Justice Neil Gorsuch.

Justice Kavanaugh’s career as a partisan lawyer working for Republican administrations may have raised red flags to some, but he is not the first political or partisan nominee.

One of the most famous chief justices of the Supreme Court who helped greatly expand the court’s power and authority, John Marshall, was a member of Congress and secretary of state prior to ascending to the court.

Abe Fortas was confirmed to the Supreme Court under President Lyndon Johnson. He was a brilliant legal mind but also the president’s close confidant, who did the president’s legal work in the past, including representing Johnson in an election case that eventually made him a United States senator. The Senate did balk when Johnson tried to make him chief justice.

William Howard Taft was appointed chief justice of the Supreme Court after he was elected and served as president of the United States. He was confirmed the same day he was nominated by President Warren Harding on June 30, 1921, by a 60-4 Senate vote.

The aforementioned Earl Warren was appointed chief justice to the Supreme Court after being the long-serving Republican governor of California.

Justice Kavanaugh’s partisan résumé is not an unprecedented violation of Supreme Court norms — but his behavior before the Senate Judiciary Committee may be because he violated the fundamental rule of the court’s legitimacy: impartiality. When countering the charges of sexual assault raised by Dr. Christine Blasey Ford, Kavanaugh angrily discarded any veneer of impartiality. He called the entire process, “… a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election.… Revenge on behalf of the Clintons. And millions of dollars in money from outside leftwing opposition groups. This is a circus.…”

The testimony was unheard of for a nominee for the highest court, at least in modern times. His conduct and temperament over the past several weeks raise serious questions about whether he could be an impartial jurist. Gone is the neutral and bland appearance of an impartial judge, and it is replaced by overtly hyper-partisanship. If Supreme Court justices are seen only as a reflection of the party or individuals that nominated and confirmed them, it could erode public confidence in the Supreme Court and fundamentally threaten its legitimacy — especially if and when Justice Kavanaugh is the deciding vote in controversial cases.

Justice Kavanaugh’s actions will be under a microscope, at least to start. If he rules for the Trump administration, will it be seen as the actions of a neutral judge or a partisan operative who is getting revenge against his perceived enemies? Is the only way to show independence to rule against the administration?

Decades ago, Chief Justice Warren wiped away any inkling of Republican political partisanship when he ended up presiding over one of the most liberal Supreme Courts in the nation’s history. He was such a disappointment to President Eisenhower and the Republican party that when asked about his biggest mistakes, President Eisenhower responded, “Yes, two. And they are both sitting on the Supreme Court (Earl Warren and Justice William Brennan).”

The Kavanaugh process has created quite the conundrum for the court. Is keeping a ledger of who wins and who loses the test of a Supreme Court justice’s independence and impartiality? Will there be any repercussions for the institutional legitimacy of the court? Time will tell if there will be negative implications for the court, but if there is, Justice Brett Kavanaugh only has himself to blame.

Jim Malatras is the president of the Rockefeller Institute of Government and an adjunct professor in political science at the University at Albany. He is the former director of state operations to Governor Andrew Cuomo and was the administration’s point person on education policy as well as the state’s property tax cap.