Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh, there has been a largely overlooked casualty: the American judiciary. It’s not the end result alone — his addition to the highest bench in the land where he will sit for life — that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.
Senator Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed “worry” that such behavior would lead to “a lack of public faith in the judiciary.” Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency, and fairness.
Surprising as this derailment of justice might have seemed, it echoed (and may, in fact, have reflected) another long-unspooling twenty-first-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at Guantánamo Bay, Cuba, pivoted away from many of the country’s legal and moral principles (a subject to which I’ll return).
But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be “faithful guardians of the Constitution.” Toward that end, the Court was to stand independent…