By Vanita Gupta & Fatima Goss Graves
October 23, 2019 at 5:00 am ET
One year ago, the Senate narrowly voted to confirm Brett Kavanaugh to the U.S. Supreme Court. His wrenching confirmation rocked the American public — and showed with painful clarity just how deeply our institutions protect men of privilege and power at the expense of justice. But only now, in retrospect, can we fully understand how Kavanaugh’s confirmation splintered our democracy too.
Lifetime appointments to the Supreme Court merit the highest scrutiny, and yet Kavanaugh’s confirmation was marked from the beginning by stonewalling, evasion and secrecy. With the midterm elections looming, his bad-faith defenders sped up deliberations and willfully ignored Senate Democrats’ calls for transparency and due diligence.
Today, we know this was not a one-off spectacle. The White House and Senate Majority Leader Mitch McConnell have only further eroded the process for appointing federal judges in the past 12 months. And to what end? A devastating takeover of the courts — and a takedown of the Senate’s democratic traditions.
By abandoning decades-old norms and safeguards, Senate Republicans have managed to confirm 156 lifetime judges to our federal courts during Trump’s presidency. This conveyor-belt confirmation process is by design. Democratic senators no longer have meaningful opportunity to vet and debate nominees, allowing McConnell to barrel ahead with nominees who are largely unfit and unqualified to serve on our federal bench.
Take Steven Menashi, an extreme ideologue with a proven anti-civil rights record. Most recently, Menashi worked on immigration policy at the White House alongside Steven Miller, who is notorious for engineering white nationalist policies that shut people out of our nation with chilling cruelty. Menashi also served as acting general counsel in the Education Department under Betsy DeVos, overseeing the department’s decisions to weaken the enforcement of laws protecting sexual assault survivors, students of color, students with disabilities, and LGBTQ people. Both of Menashi’s home-state senators oppose his nomination, which traditionally would bar him from moving forward. Not anymore.
There is also Wendy Vitter, who endorsed widely discredited and far-flung views about abortion and birth control. During her hearing, she also failed to agree that the unanimous Brown v. Board of Education decision was correctly decided. The ruling declared the shameful doctrine of “separate but equal” — which for nearly a century had enforced a racial caste system and dehumanized African Americans — was inherently unequal and unconstitutional. Astonishingly, Vitter is just one of several nominees to have done so. The more recklessly McConnell pushes through these nominees, the more the moral floor seems to vanish.
If we take a step back and look through a wider lens, the reality is even bleaker: More than 85 percent of Trump’s appointments are white and nearly 70 percent are white men. Only three nominees are women of color. And not a single appointment to the circuit courts is African American or Latinx. Diversity matters because communities depend on the federal courts to affirm their lived experiences and recognize injustice from the perspective of many — not the narrow perspective of one.
The integrity of the federal courts is in jeopardy. But there is plenty of reason to hope: Kavanaugh’s confirmation also fired people up.
When Dr. Christine Blasey Ford courageously came forward to share her story of sexual violence, she created space for millions of people — and especially women — to open up about their own trauma and be vulnerable and seen in community. We were seated in the hearing room during her testimony. As she spoke her truth, the pain was palpable. So was her courage and conviction.
What happened next scorched our nation’s faith in the deliberative process. Blasey Ford was met with ridicule and none of the seriousness owed to her story. During the latter half of the hearing, Republican senators relished their chance to express outrage on Kavanaugh’s behalf. Kavanaugh himself played to an audience of one — Trump —and lashed out at Democratic senators. Later, the president publicly mocked her at a rally. And the White House imposed limitations on the FBI investigation that were so narrow as to defeat the fact-finding mission before it began. We continue to call for a full and independent investigation today.
The ordeal was dizzying. It also fueled our resolve to fight for an America that is good, decent and safe for us all. Last summer, people across the country mobilized in what became the most robust civil and human rights effort to oppose a Supreme Court nomination. Months later, women voted in record numbers and elected the most diverse Congress in our nation’s history, including more than 100 women.
We must corral that same fierce energy now. As much as the federal courts can protect our civil rights, they can also abandon the rule of law — and abandon us, leaving our communities to the mercy of people and institutions driven by hate, bigotry and fear of any threat to the status quo. Republicans have planted the seeds of this takeover for decades — and now, they are leaping into action. Cases are moving through the courts that could roll back decades of progress on racial justice, reproductive rights, protections for refugees and asylum seekers, climate change and the right to vote.
The fruits of the conservative investment in the courts are now real — but they are not a foregone conclusion. Not if we rise up now. It is not enough to hope the law will prevail. We must do the hard work to protect our courts and make equal justice under law more than an abstract idea, but a lived reality for us all.
Vanita Gupta is president and CEO of The Leadership Conference on Civil and Human Rights. Fatima Goss Graves is the president and CEO of the National Women’s Law Center.
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