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How To Save A Constitutional Democracy With A Tainted Judiciary

Aziz Huq and Tom Ginsburg's book How to Save a Constitutional Democracy is out from the University of Chicago Press later this month, and will be the basis of a blog symposium on Take Care.

The confirmation process of Brett Kavanaugh has been decried by many for damaging the U.S. Senate's norms of civility and the U.S. Supreme Court's nonpartisan reputation. But that process, and in particular the September 27th hearing on allegations of attempted rape by Kavanaugh, has had a much more specific risk to the Court as an independent institution. This risk will cast a disabling shadow on any vote cast by Kavanaugh in a case that yields predictable partisan divisions.

The risk arises primarily (though not only) because of Kavanaugh's denials of heavy drinking habits in high school and college. These are at odds with the recollections of a large number of his peers. The discrepancy is no small matter. Rather, it goes to the core of sexual assault allegations against him. If Kavanaugh falsely stated that he never drank enough to blackout and memory impairment, then he cannot categorically deny the possibility that Dr. Christine Blasey Ford's grave allegations are correct. Yet, he has repeatedly done so. (There are other grounds for questioning Kavanaugh's truthfulness under oath on a surprising range of issues; we set those aside here for the sake of brevity and analytic clarity.)

Kavanaugh's aggressive deflections of questioning about his drinking suggest he understood how crucial this fact was. Democrats understand it, too. Some quickly called for an FBI investigation into potential perjury respecting this very issue. The FBI investigation did not reach these questions. After November, however, some Democrats may wield subpoena power permitting them to find out more, and perhaps even to draw up articles of impeachment.

Allegations of perjury go not only to matters of legitimacy or reputation. They also bite on Kavanaugh's independence from the currently dominant political coalition. Simply put, his fate is now hitched to the electoral fortunes of the Republican Party. His freedom from a substantial risk of impeachment now rests on the preservation of Republican control of key national institutions.

Kavanaugh should understand the risk of impeachment. Indeed, as a key player in Ken Starr's investigation of the Clintons, he helped create it. The first article of President Clinton's impeachment, flowing from that investigation, hinged on his "perjurious, false and misleading testimony" to a grand jury regarding his relationship with Monica Lewinsky. That article prevailed in the U.S. House 228-206, but failed in the Senate.

It is hard to see a difference between perjury to a grand jury and perjury before the Senate, at least when it comes to impeachment. Nor is there a good reason to differentiate lying about sex from lying about drinking. Potential perjury in seeking a seat on the Court is a stronger basis for impeachment than the facts alleged in the Clinton impeachment. Indeed, a decade ago, two (conservative) legal scholars sketched a colorable case for removing federal judges outside the impeachment mechanism on the even-more slender basis of a judicial finding of misbehavior.

Kavanaugh's potential perjury means that he will always be shadowed by at least the prospect of impeachment. This threat has no statute of limitations. It means concretely that whether Kavanaugh remains on the bench depends on whether Democrats at some point seize enough political power to credibly threaten impeachment. And because Kavanaugh's tenure is directly tied to the persistence of Republican control of Congress, he has a direct and personal interest in maintaining Republicans in power.

It is important to see that this follows even if you think Kavanaugh did not lie, or commit attempted rape; what matters is that Democrats can credibly threaten impeachment in relation to those allegations, and have ample incentive given their base's sentiments to do so. Of course, Republicans have no such incentive. It is this asymmetry that creates the functional linkage between Kavanaugh's expected tenure and Republican political power.

This linkage is, in our view, intrinsically troubling. But it also means that votes by Kavanaugh on disclosure rules, gerrymandering, or (say) the subpoenaing of a sitting president will be necessarily occluded in doubt about his motives. As a sitting justice, moreover, Kavanaugh would have the power to act alone to issue stays and orders in some ongoing case. This power to stay matters is especially potent in time-sensitive election-related litigation. It is easy to imagine this power generating great controversy. Finally, every doctrinal innovation Kavanaugh introduces that helps Republicans will be tainted by doubt about its bona fides.

America has known ideologically committed judges aplenty. But a justice whose very place on the Court depends on a partisan majority is new. We can think of no account of judicial independence that is consistent with this state of affairs.

This tainting of judicial independence cannot be untangled from a risk to democracy writ large. As we document in our new book, capturing the judiciary is an important element of democratic backsliding. From Venezuela and Bolivia to Hungary, Poland and Turkey, many democracies have suffered when populist movements won elections and seized legal and constitutional tools to entrench themselves beyond defeat at the polls. A first move in their playbook is to co-opt the courts. In Eastern Europe, the Fidesz and Law and Justice parties purged their nations' constitutional courts, stocking them instead with loyalists. After a 2016 coup attempt, Turkey President Recep Tayyep Erdogan locked up or dismissed about a thousand judges. In the Philippines, a chief justice critical of President Rodrigo Duterte has been impeached. Duterte himself remained untouched by the law, despite having bragged of extrajudicial executions.

Targeting judges make sense. Supreme courts can impose critical frictions on populists bent on evading the law. In Colombia, for example, the Supreme Court stymied President Alvaro Uribe's second attempt to do away with term limits - a move that would allowed him unprecedented power over state agencies. In South Africa, the Constitutional Court prevented former president Jacob Zuma from avoiding penalties for major graft and appointing a stooge as chief prosecutor. Its actions were pivotal to catalyzing Zuma's resignation in February 2018.

Kavanaugh's appointment to the Court was always going to produce some damage to democracy. His prior jurisprudence shows skepticism of efforts to reduce money's effects in politics, not just by regulating campaign contributions and expenditures, but also via disclosure mandates. Kavanaugh is not only unlikely to allow challenges to partisan gerrymandering or voter suppression, he may also vote to overrule a 2015 precedent permitting states to establish nonpartisan redistricting commissions. A 2016 decision allowing states to use their whole populations, rather than eligible voter populations, may even be at risk. Kavanaugh's mere elevation will likely embolden state and federal officials who are more comfortable picking their voters, and tightening their links with big money donors, than allowing voters to select them.

The damage done by Kavanaugh's testimony to his structural independence, however, is qualitatively different. It also marks a turning point - for the worse - on the part of the Supreme Court's trajectory in American politics.

No matter how well-intentioned Kavanaugh may prove, he cannot erase the shadow on the Court's independence that his own testimony has created.

Kavanaugh's testimony created a new - and unprecedented - risk that he will be personally beholden to his fellow Republicans in the House and the Senate, above and beyond his manifest ideological commitments.

This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.


Aziz Huq and Tom Ginsburg are both professors at the University of Chicago Law School.


Comments welcome.


Posted on October 9, 2018

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