Brett Kavanaugh’s partisanship

By LEXINGTON | WASHINGTON, DC

DONALD TRUMP does not seem too put out by Brett Kavanaugh’s struggle to win confirmation to the Supreme Court bench. He seems to be enjoying it. At a White House press conference the president offered some of his best wisecracks and slyest insinuations on the farrago. In the judge’s angry rebuttal to Christine Blasey Ford’s allegation of sexual assault, the president claimed mischievously to have heard Mr Kavanaugh confess to having had “difficulty as a young man with drink”. The teetotal president never had that problem. “It’s one of my only good traits. I don’t drink,” he deadpanned. “Can you imagine if I had? What a mess I would be?”

Schadenfreude is, with golf, the president’s main late-life indulgence. And the humiliating of Mr Kavanaugh, a pious, high-flying, Ivy Leaguer tippler, who once worked for George W. Bush, has given him opportunities to tuck in. Mr Trump resents all those things almost as much as he needs, for political purposes, to get Mr Kavanaugh elevated. His good spirits also point to a bigger casualty of Mr Kavanaugh’s troubles, the established political system, which the president resents especially. To the extent that he tries to justify his dishonesty he does so by implying that other politicians are even worse. And the dismal scene before the Senate justice committee, and partisan mud-wrestling that has followed Ms Blasey’s and Mr Kavanaugh’s testimonies, might suggest he is right.

The Blasey-Kavanaugh row has shown American tribal politics at its most destructive in the one area, the Supreme Court, least infected by it. If Mr Kavanaugh is confirmed, after having expressed contempt for his Democratic interrogators and blamed the airing of Ms Blasey’s allegation on a vengeful left-wing cabal of rich Clinton supporters, the court’s claim to be above politics will be untenable. The consequences for the feuding system it is increasingly called upon to referee could be severe.

At the heart of the conflict is the now unignorable fact that partisan Americans inhabit different realities. This was apparent in the Senate, where Democrats were in such a rush to say they believed Ms Blasey’s plausible, yet uncorroborated, testimony it was tempting to recall the old saw: “If you tell the truth, you don’t have to remember anything.” At least they were on the right lines. Ms Blasey’s claim that Mr Kavanaugh, as a drunken high-schooler, sexually assaulted her was so convincing that even Mr Trump at first called her “very credible”. And Mr Kavanaugh’s response to the Democrats’ questioning was evasive. Yet the Republicans, unimpressed by this, proceeded mainly to rage against the Democrats, whom they accused of leaking Ms Blasey’s allegation. Finding themselves unable to dismiss it out-of-hand (as Mr Trump has subsequently), they also did the next-best thing. The Republicans argued that any allegation against Mr Kavanaugh that did not meet prosecutable evidentiary standards was irrelevant.

That makes no sense. Mr Kavanaugh is not on trial. He is being interviewed for one of America’s most important jobs, for which there are other good, and perhaps less tainted, conservative judges available. Yet both Republicans and Democrats, it turns out, were giving their followers what they wanted. Surveys suggest that Americans are straightforwardly divided on Mr Kavanaugh and Ms Blasey on partisan lines. Republican voters say they believe the man, Democrats believe the woman.

This is unsurprising—and, if Mr Kavanaugh were a politician, it would be acceptable. Social scientists have long demonstrated the extent to which moral reasoning is shaped by social pressures, not the objective standards of decency and fitness that a Senate confirmation hearing is expected to adhere to. Recent research, by Ezra Zuckerman-Sivan of MIT and others, has also demonstrated the extent to which voters permit, or expect, their political champions to lie in support of their chosen outlook.

Mr Trump’s supporters knew perfectly well that climate change was not, as he claimed, a hoax made up by the Chinese to kill American manufacturing. But they liked the targets he presented in that sentence too much to mind the lie. Many Democrats, similarly, chose to ignore Bill Clinton’s lies about his dalliance with an intern because they preferred to see him as a victim of Republican activism. Little wonder, as Mr Zuckerman-Sivan noted this week, that hardly any conservative is upset by Mr Kavanaugh’s untruths about his teenage drinking and understanding of the word “boof”. Yet there is a difference between these examples. Politicians are the inevitable protagonists in America’s political war. They are expected to lie and can be ejected. Mr Kavanaugh is on the cusp of a lifetime employment to the Supreme Court bench, where he would be charged with mediating disputes between America’s rival worlds. That he is being compared to politicians suggest how alarming that is.

For an idea of how it might go, imagine the judge, whose elevation a majority of women oppose, being asked to rule on an abortion-law case. Or consider how his view of a matter, such as gerrymandering or voter registration, potentially deleterious to the Democrats, would be received. No one truly believes the Supreme Court is above politics. Yet its legitimacy to settle such highly divisive issues rests upon a broad acceptance that it is more than an instrument of partisan opinion. That can never again be said of Mr Kavanaugh with confidence. He has the potential to render the rulings of America’s highest authority illegitimate for half the country.

That is a horrendous prospect. At the least it might lead to the court being remade—by packing more judges onto it, for example, or enforcing term limits on their service. But it is not difficult to think of worse consequences. It would be an America in which demagoguery and civil disturbance might thrive. It could make the Trump era look serene by comparison.