Unless you’ve been hiding under a rock — an ever more appealing prospect this summer — you have no doubt noticed the televised election campaign being waged for Judge Brett Kavanaugh’s elevation to the Supreme Court.
Oops, Freudian slip there. Supreme Court justices are not actually elected, although if you picked the wrong day to skip civics class, or if you just landed from Mars, you would be forgiven for thinking they appear on a ballot.
For some time now, members of the court have been warning that the day was approaching when the world would “think we are sort of junior varsity politicians,” as Justice Elena Kagan put it during a visit to the University of Chicago last month. Justice Stephen G. Breyer has used the same phrase.
And Chief Justice John G. Roberts Jr., speaking at Rensselaer Polytechnic Institute last year shortly after the Senate’s almost completely polarized confirmation of Justice Neil Gorsuch, mused, “It is very difficult, I think, for a member of the public to look at what goes on in confirmation hearings these days, which is a very sharp conflict in political terms between Democrats and Republicans, and not think that the person who comes out of that process must similarly share that partisan view of public issues and public life.”
If those fears have not already been realized, the day when they will be is hurtling toward us at accelerating speed. Here’s a spot entitled “Grand Slam,” paid for by the Judicial Crisis Network and now playing on a television screen near you. It showcases Judge Kavanaugh, on the night President Trump nominated him, proclaiming his fealty to the “American rule of law,” as the voice-over intones: “For conservatives, he’s a grand slam,” and, “Tell your senator: Confirm Kavanaugh.”
The Judicial Crisis Network, which spent millions of dollars last year to block the confirmation of Chief Judge Merrick Garland, President Barack Obama’s nominee, and to promote Justice Gorsuch’s confirmation in his stead, announced three weeks ago that it had already spent $4.5 million on pro-Kavanaugh commercials, with a special focus on television markets in red states where incumbent Democratic senators are running for re-election. The Judicial Crisis Network is closely tied to Leonard Leo, executive vice president of the Federalist Society, which has provided the Trump administration with nearly all its judicial nominees so far.
I should make a couple of concessions here. One is that there are television ads on the other side as well, ads that attack a cartoonish version of Judge Kavanaugh and that predict all manner of disasters if he joins the court. Last month, an organization called End Citizens United ran an anti-Kavanaugh ad entitled “Hold,” as in “We hold these truths to be self-evident.” Over a doomsday musical score, the serial narrators declare that “Brett Kavanaugh on the Supreme Court endangers protections for people with pre-existing health conditions,” “puts a woman’s right to choose gravely at risk,” and “threatens to continue selling out America to powerful corporate interests.”
While the second of those three claims is, based on what we know, a pretty sure bet, the first and third strike me as barely a step up from fearmongering. Whatever the anti-Kavanaugh campaign’s merits or lack thereof, its spending is barely a drop in the television advertising ocean. The amount that End Citizens United spent to run its commercial for a week was $350,000, little more than a rounding error in the Judicial Crisis Network’s checkbook.
As for my second concession: Anyone old enough to remember Judge Robert H. Bork’s confirmation battle in 1987 will not have forgotten the anti-Bork television commercial narrated by Hollywood’s icon of probity, Gregory Peck. Developed with the support of People for the American Way and entitled “The Last Word,” it ran for the first 10 days of the two-week confirmation hearing. It depicted a young family — mother, father, two children — walking up the Supreme Court’s front steps and gazing raptly at the glistening marble building. The actor’s voice informed viewers that Judge Bork should not be on the Supreme Court because, among other reasons, “he doesn’t believe the Constitution protects your right to privacy” and “he thinks freedom of speech does not apply to literature and art and music.”
Those were accurate, if reductive, descriptions of the nominee’s positions. The commercial was highly effective, capturing public attention, catching the Reagan administration flat-footed, and leaving Judge Bork’s partisans crying “unfair.” In “The People Rising,” an invaluable but sadly out-of-print chronicle of the Bork episode, the authors, Michael Pertschuk and Wendy Schaetzel, described the essence of the anti-Bork media strategy. The insight was that paid media would drive unpaid media: “A news conference to announce the ‘premiere’ of an anti-Bork commercial starring Gregory Peck, for example, is certain to attract more press coverage, especially TV, than the release of a scholarly report on Bork’s record (though the quality of the coverage may be inferior.)”
So does this summer’s pro-Kavanaugh campaign simply even things up with the past generation’s mother of all confirmation battles? While that’s a superficially plausible takeaway, it seems to me that there’s a difference between advocacy for and against a Supreme Court nominee, a difference that matters.
Within our current framework, the Judicial Crisis Network’s ads strike me as slick but entirely conventional in their blandness. But assuming that there’s still a line somewhere, I believe the National Rifle Association has crossed it with a commercial declaring that “President Trump chose Brett Kavanaugh to break the tie” between the “liberal justices” who “oppose your right to self-defense” and the “four justices” (who are seemingly without left-to-right ideology) who “support your right to self-defense.” The ad concludes: “Your right to self-defense depends on this vote. Tell your senator to defend our right to self-defense. Confirm Judge Kavanaugh.”
In other words, in this commercial, Judge Kavanaugh is being held out as the designated hitter for a specific cause that is often before the court. We are invited to picture the nominee as having been sent zombielike out into the world with a single mission. Confirm him, we are told, so that the Supreme Court, after a decade of deadlock on the Second Amendment, can finally get the project of expanding gun rights moving again.
Given the N.R.A.’s participation in the many Second Amendment cases that reached the court — in recent years, unsuccessfully — I wondered whether this aggressive advocacy would impel Judge Kavanaugh to recuse himself from future gun-related cases. After soliciting some expert opinions, I’m persuaded that’s not the case. The problem is one of taste rather than ethics, the continued degradation of our judicial politics.
Maybe I’m a bit touchy about the N.R.A. because of its underappreciated role in recent Supreme Court nominations. It was in 2009, with President Obama’s nomination of Sonia Sotomayor, that the organization agreed to do a favor for Senator Mitch McConnell, the Kentucky Republican who was then the Senate’s minority leader, and not only oppose Judge Sotomayor but “score” the vote on her nomination. Advocacy groups “score” a vote by adding it to the report card they put out at the end of a congressional session, showing at a glance whether a member of Congress was on or off the group’s bus. While an N.R.A. score of 100 percent is vitally important in some parts of the country, the organization had never before scored a Supreme Court confirmation vote.
But Senator McConnell needed the favor because, despite his public vow to make sure that President Obama accomplished as little as possible, it appeared that a good number of Republican senators were ready to vote for the appealing nominee with a compelling personal story. Following the N.R.A.’s announcement, Republican support melted away, and only seven Republicans voted for Justice Sotomayor’s confirmation. The scenario was repeated the next year, when the N.R.A. opposed Elena Kagan’s nomination. Neither of President Obama’s nominees had a record on guns that could have provided a principled reason for opposition; indeed, Elena Kagan, solicitor general of the United States and former dean of Harvard Law School, had never been a judge. Only five Republicans voted for her confirmation.
Where will this end? Here’s my fantasy, my fondest hope for rescuing the Supreme Court from the precipice over which the current confirmation process is pushing it. In Judge Kavanaugh’s Senate confirmation hearing, scheduled to begin in less than three weeks, a senator will play the N.R.A. commercial. What do you think of this, the senator will ask the nominee, who will assume his most sincere expression and reply: “I’m Brett Kavanaugh and I disavow that commercial.”
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