Kavanaugh on the U.S. Supreme Court: sparks or harmony?

[October 06, 2018]  By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) - When Clarence Thomas took a seat on the U.S. Supreme Court in 1991, he had only barely survived a series of bitter Senate hearings on allegations of sexual harassment that divided the country.

But he said he was quickly welcomed by his eight fellow justices.

"After going through all those difficulties, the members of the court were just wonderful people to a person," Thomas said in an appearance at the Library of Congress earlier this year. "So the court itself is quite different from the ordeal. It’s almost the opposite of the ordeal it took to get there."

Brett Kavanaugh will be counting on those strong traditions of collegiality if, as expected, he is confirmed by the Senate as a Supreme Court justice this weekend.

Kavanaugh's nomination hearings were rocked by university professor Christine Blasey Ford's allegations that he sexually assaulted her in 1982, when they were both high school students.

Two other women also alleged sexual misconduct by the conservative Kavanaugh.

The accusations as well as Kavanaugh's angry denials and fierce criticism of Senate Democrats widened the U.S. political divide just weeks before congressional elections and raised concerns about the court's reputation in U.S. society.
 

Like Thomas in 1991, Kavanaugh will be joining a right-leaning court. He succeeds retired Justice Anthony Kennedy, who was often the decisive 5-4 swing vote on social issues, and consolidates conservative control of the nine-member Court.

But the four liberal justices include 85-year-old feminist icon Ruth Bader Ginsburg, who made her name as an advocate for women’s rights.

Ginsburg voiced support for the #MeToo movement against sexual misconduct even as Kavanaugh was about to face a grueling Senate hearing into the allegations against him, saying that unlike in her youth “women nowadays are not silent about bad behavior.”

Still, Supreme Court experts believe the justices are likely to move past any differences, as they have done in the past.

"I think the justices care very much about collegiality and not purely for the sake of collegiality. They think it's important for people who disagree with each other to work together," said Carolyn Shapiro, who served as a law clerk for liberal Justice Stephen Breyer.

The liberal justices - Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor - need to seek support from at least one conservative in ideologically divisive cases, so they have a strong incentive not to alienate the new arrival, court experts said.

Kagan, known for her strategic nous, has an existing relationship with Kavanaugh. In her former role as dean of Harvard Law School, she hired Kavanaugh to teach there.

"She is practical enough that she is going to put that behind her and have the best relationship she can with someone she is going to have to put up with for 30 years," said one Washington lawyer, who declined to be named because he argues cases at the court.

"The bigger question is Sotomayor and Ginsburg," the lawyer added.

Sotomayor has stressed the importance of collegiality, recounting at a 2016 event how the justices often eat together after oral arguments.

"There is no topic that’s off limits. But we try to avoid controversy, so we're very guarded about raising topics that we think might create hostility in the room," she said.

FRIENDSHIPS AMONG JUSTICES

Ginsburg was herself famously close friends with the late conservative Justice Antonin Scalia, with the two bonding over a shared love of opera despite their ideological differences.

U.S. Supreme Court Justice Ruth Bader Ginsburg participates in taking a new family photo with her fellow justices at the Supreme Court building in Washington, DC, U.S., June 1, 2017. REUTERS/Jonathan Ernst/File Photo

And Thomas is himself is seen as a popular figure among the other justices.

Aside from his belligerent Senate appearance and his reputation as a doctrinaire conservative, Kavanaugh has been seen as a calm, easy-going judge on the federal appeals court in Washington. He is also a self-declared fan of sports and beer.

Supreme Court justices do not always get on, however. Most notably, several justices chafed at the leadership of Chief Justice Warren Burger, who served from 1969 to 1986.

The broader problem facing the court may be whether the circumstances of Kavanaugh's confirmation have damaged not just Kavanaugh's reputation but also the institution itself.

"This is going to make the court seem more political, and I think that’s dangerous because the legitimacy of the court turns on the belief that law is distinct from politics," said Ernest Young, a conservative law professor at Duke University.

At the Sept. 27 Senate hearing into Ford's allegations against Kavanaugh, he fought back with a blistering partisan attack in which he described the allegations against him as a "calculated and orchestrated political hit" masterminded by the Democrats and left-wing groups.

"I had hoped and still hope that if confirmed he will be a non-partisan justice," said Yale Law School Professor Akhil Amar, who supported Kavanaugh's nomination. "But the savage and ugly partisanship in late September may make that harder, psychologically, to happen."

Retired Justice John Paul Stevens, a Republican appointee, said on Thursday that Kavanaugh's remarks in that hearing should disqualify him from serving on the high court.

Kavanaugh, in an opinion piece in the Wall Street Journal article this week, said he regretted some of his comments.

"I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said," Kavanaugh wrote.

The concern for some on the left is whether Kavanaugh will be able to put aside several bruising weeks and give all who come before him a fair shake.

"We should fully expect that there will be parties that appear before him in the future who will be deeply skeptical about receiving a fair opportunity to be heard," said Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law, a civil rights group.

(Reporting by Lawrence Hurley and Andrew Chung; Editing by Kieran Murray and Cynthia Osterman)

[© 2018 Thomson Reuters. All rights reserved.]

Copyright 2018 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.