As I write, Brett Kavanaugh is not yet a Supreme Court Justice. I assume he will be one soon. I am going to argue that this is the best of the bad possible outcomes.
Yes this is making the best of a bad situation and pathetic motivated reasoning. Yes Collins’s speech drove me into an almost insufferable panic and despair (don’t ask me ask, my soon to be ex-wife if I don’t get a hold of myself [by blogging]). Consider this post emergency marriage therapy (or my bothering you by my recognition of her 8th amendment rights).
First it is clear that a very large fraction of the US public believe that Kavanaugh is a criminal and think it is very wrong for him to serve on the Supreme Court. In polls this seems to be a plurality not an absolute majority.
Also, on Thursday, he demonstrated that he is a raging partisan who aims to use his robe to punish his political adversaries. I think this was already clear to anyone who paid attention, but it is now clear to many people who looked the other way. They include lifelong Republican Justice John Paul Stevens a retired justice who argued against confirmation of a new one. This is unprecedented. The ABA reopened their evaluation of Kavanaugh when it was too late to influence the Senate. I am pretty sure that is unprecedented too. 2,400 law professors signed a viral petition arguing against confirmation of someone who was likely to be incredibly powerful. I suspect this is unprecedented event 3.
This means that the perceived legitimacy of the Supreme Court is in great danger (as it was in 2000 and as it was when the Warren Court decided to take the Constitution seriously). I’d also say that Justice Kavanaugh will attract attention to the misdeeds (torts not crimes) undoubtably committed by Justice Thomas and his felonious denial of those facts under oath. He was never a legitimate Justice, and that will no longer be over looked.
5-4 decisions with Kavanaugh and Thomas in the majority will be perceived to be illigitimate by a very large fraction of the population (I guess eventually reaching a majority but maybe just a plurality). This is exactly what Chief Justice John Roberts fears most — and can prevent any time he wishes. 5-4 decisions with Kavanaugh in the minority will not destroy the perceived legitimacy of the Court or endanger the constitutional order. I hope Justice Roberts (who clearly votes based on the outcome he prefers and can rationalize anything) will act accordingly.
Also packing the court is a very extreme act which would definitely endanger the Republic. It was done — in the 1860s. The congress that changed the number of justices also impeached President Andrew Johnson and refused to seat representatives and senators elected in Confederate states. This followed the Civil War — after killing each other for 5 years Americans were prepared to change the number of justices if necessary.
It was threatened by F. Roosevelt leading to “a switch in time saves nine” a sudden shift from declaring the New Deal unconstitutional to accepting it, because the alternative was a packed court. I may have made a mistake above. I guess Roberts fears court packing even more than he fears perceived illigitimacy — the two are so closely linked it would be hard to tell even with ESP.
One point is that he can avoid both by voting with the Democrats.
Another is that desperate times call for desperate measures. Court packing is preferable to submission to an undemocratic oligarchy and armed revolution and the GOP may leave us only those three choices.