“A minority of the national population now controls all three branches of the nation’s government. Or, in other words, in a democracy where the majority presumably rules, current American politics has turned this basic rule upside down and permits the minority to control the majority.
“The president lost the popular vote. The senate is in the hands of senators representing a minority of the overall population. While one-person-one vote requires that the election districts in the house be equal in population, gerrymandering permits the minority party — the Republicans — to control the house. And now the Supreme Court is in the hands of justices four of whom were nominated by presidents who lost the popular vote and who were confirmed by an undemocratic institution — the senate.
“The US constitution was designed to be anti-democratic in nature. Every state regardless of its population has two votes in the senate; the electoral college selects the president without constraints imposed by the majority vote; a majority of the Supreme Court justices invalidates legislation adopted by politically accountable legislators. The intention was to build safe-guards into the governing system to counter the effects of populism and the mobilized public mob.
“But it is unlikely that anyone who designed the system in the 18th century had the current radically distorted allocation of political power in mind, and I cannot recall the last time the current condition existed — perhaps in the 1920s and1930s. Certainly not since Hoover lost to FDR in 1932.
“And now Kavanaugh will be on the high court joining Roberts, Thomas, Alito, and Gorsuch, to make a conservative majority that will more than likely be pro-business, anti-environmental laws, against abortion, hostile to climate change laws and rules, opposed to rights of the LBGT community, rejecting of affirmative action, favoring of the entanglement of religion and government, favoring presidential power, rejecting of the rights of immigrants, and more.
“But after his screed on the left wing Democratic Party political conspiracy Kavanaugh claimed was out to destroy him, his career, and his family, how can Kavanaugh possibly participate in these and other cases which are laced with divisions that mirror Kavanaugh’s own conspiratorial views?
“That was the point that former Justice Stevens made a few days ago. The Supreme Court is possibly hog-tied if one of the nine frequently must recuse himself because of the appearance of a conflict of interest, and it would seem that is what Kavanaugh must do if finally confirmed — not participate in any case that his political screed encompased.
“Unfortunately, the answer may be that Kavanaugh may just tough it out. Scalia did that in a case involving Cheney after Scalia and Cheney went duck hunting together. Rehnquist participated in the design of an Army surveillance program aimed at domestic civilian political dissidents and refused to recuse himself in a 5 to 4 vote almost a half century ago.
“Impeachable? Not likely. Activities that are impeachable are four — treason, bribery, and high crimes and misdemeanors. Of course, Jerry Ford famously stated that those words mean whatever congress says they mean. But then we don’t want Democrats paying games with the impeachment power.
“Now it is true that Kavanaugh’s situation is different from Scalia and Rehnquist’s. In his screed, he has taken on the Democratic Party establishment, and, properly understood, that should cause him to recuse himself in many cases that will be routinely on the Supreme Court’s docket. That in turn will greatly injure the Supreme Court.
“But I doubt if Kavanaugh will recuse himself, and his failure to do so will do great damage to the Court’s legitimacy, as did its 5 to 4 decision in Bush v. Gore.
“Is there a remedy if Kavanaugh does not recuse himself? Perhaps, but I cannot now point to one with any confidence except to secure preferred political outcomes in 2018 and 2020, and then assess matters when Democrats may hold political remedial power.”
— David Rudenstine, Sheldon H. Solow Professor of Law, Benjamin N. Cardozo School of Law, author of The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (2016, Oxford University Press).