Brett Kavanaugh joins the Supreme Court as damaged goods, dogged by questions about his integrity that he may never be able to outrun — casting a pall over the institution for a long time to come, high court experts said.
“I don’t think he’ll ever be able to disassociate himself from what just happened,” said Benjamin Barton, a professor at the University of Tennessee College of Law. “For Kavanaugh, this is a first-paragraph-of-his-obituary type of situation. He’s going to be known for this and stuck with this for his career.”
Barton added, “Every single case that he is on, people will say, ‘Hmm, I wonder what Kavanaugh decided for this?’ When we have a whole string of 5-4 decisions with Kavanaugh on there, it will make it seem like a partisan body, which is terrible for the Supreme Court and bad for the country.”
NBC News spoke with eight court watchers, including academics, former clerks and ex-legislative aides to get this take on the court’s newest member as he begins his work on the court this week.
All of the experts, regardless of political leaning or judicial philosophy, offered a stark prognosis for Kavanaugh and for the court: That his reputation as a jurist has suffered, perhaps irreversibly; that the perception he can rule fairly on several hot-button issues has been diminished; and that the public’s view of the fairness of the court will drop, possibly precipitously. A few, however, said the only thing, if anything, that would ever have the chance of healing the judicial wound would be the simple passage of time.
The court watchers said they were shocked at the nominee’s unsteady, fiery temperament during his testimony and his open partisanship and defiance of Democrats on the Judiciary Committee.
Barton, a former clerk for a U.S Court of Appeals judge and the author of well-known 2012 study that examined the personal pre-Supreme Court backgrounds of justices, noted that even if the “actual integrity” of the Supreme Court ends up being unharmed by Kavanaugh’s presence, damage will be done.
“The perceived integrity of the court matters just as much,” he said. “And for the perceived integrity of the court, this is a disaster.”
Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at New York University Law School, a left-leaning law and public policy center that takes no position on nominees, went further, arguing that Kavanaugh would, in fact, “harm the actual credibility, legitimacy and authority of the U.S. Supreme Court.”
“The process throughout this entire nomination creates a serious risk for the court’s legitimacy,” she added. “And it’s not going to go away.”
For Weiser, it wasn’t just about Kavanaugh’s “injudicious comments” about drinking, his “visible lack of respect” for Sen. Amy Klobuchar, D-Minn., or his “highly partisan” statements during the hearing — although she said those were all were to his detriment.
“Cases dealing with women’s rights and gender issues are obviously going to be questioned,” Weiser said. “But honestly my concern is what he does to the court writ large. If half the country believes one of the members of the Supreme Court committed sexual assault and lacks integrity, that is going to taint the perception of all the court’s rulings.”
A court with Kavanaugh on it has a “permanent taint,” she concluded.
Anil Kalhan, a professor at Drexel University’s Kline School of Law and a former clerk to two…