How Will The Battle Over Kavanaugh's Nomination Impact The Other Justices?

Oct 5, 2018
Originally published on October 5, 2018 10:04 pm
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MARY LOUISE KELLY, HOST:

At the heart of this fight, of course - the Supreme Court, one of the most respected institutions in the country. And a lot of people are asking what effect the partisan fight over Kavanaugh might have on the high court, a question no one is better poised to answer than NPR legal affairs correspondent Nina Totenberg.

Hi, Nina.

NINA TOTENBERG, BYLINE: Hi.

KELLY: So speaking of partisanship - I'm going to get to the effect on the court in a second - but start with the partisanship that a lot of people saw on display when Brett Kavanaugh testified last week. He talked about the - that he was being targeted as revenge for the Clintons. I mean, you've covered a lot of Supreme Court confirmation fights. Had you ever seen anything like that?

TOTENBERG: Look. In historical terms, nothing like this has ever happened before, a Supreme Court nominee using partisan language to describe not just the senators but all of his opponents and couching the opposition purely in terms of anger over the 2016 presidential election. Kavanaugh's performance, in fact, caused retired Supreme Court Justice John Paul Stevens, a lifelong Republican, to speak out against the nominee. He said that he'd liked Kavanaugh a judge - even put his picture in one of his books because of a decision that Kavanaugh wrote. But Kavanaugh's demeanor and partisanship, Stevens said, demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities and might have to recuse himself because of that apparent bias. Here's Stevens speaking to a group in Florida yesterday.

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JOHN PAUL STEVENS: For the good of the court, it's not healthy to get a new justice who can only do a part-time job.

TOTENBERG: Now, I don't really think that Kavanaugh is likely to recuse himself. And indeed, you saw him today in The Wall Street Journal in an op-ed piece trying to somehow walk back some of his comments without specifying which ones.

KELLY: It appears, based on how things are shaking out in the Senate today, that plenty of senators - enough senators are prepared to vote to confirm Kavanaugh despite all these questions being raised by Justice Stevens and others. So what does that mean for the politics of the court - or at least the appearance of the court that it should be above politics?

TOTENBERG: Well, the justices will grit their teeth, and they'll put on a good show. In public - and in private, I suspect - Chief Justice John Roberts knows and has stressed that the court's best currency is the notion that it's not a partisan institution, that there may be ideological differences but not partisan ones. And all of this cannot be sitting well with him.

KELLY: Republican Susan Collins of Maine made a dramatic speech today, weighing in on some of these questions. She was announcing her support for Kavanaugh. Here's a little bit of what she had to say.

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SUSAN COLLINS: My fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions.

KELLY: How big a challenge is that going to be, Nina, for Brett Kavanaugh, at this stage, to lessen divisions?

TOTENBERG: (Laughter). Well, you don't even have to go there. Just - all you have to do is look at his record. Collins framed it as a quite moderate record today. But there's a reason that President Trump added Kavanaugh to that list of potential candidates for the court. And that is that, on questions ranging from gun regulation to executive power to abortion to overall regulations, he is firmly in the conservative - some would even say ultraconservative - vein of judicial ideology.

So I would indeed expect - eventually, anyway - lots of 5-4 votes with a five-justice conservative majority firmly entrenched, a court that is far more conservative than any we have seen in this country for, I would say, probably three-quarters of a century. How fast that happens - well, that remains to be seen.

KELLY: Just a couple of seconds left - but if this vote goes as expected this weekend, how quickly would you expect him to be seated?

TOTENBERG: I would expect him to be seated probably Tuesday morning.

KELLY: Wow.

NPR's Nina Totenberg, thanks as always.

TOTENBERG: Thank you.

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