Kavanaugh confirmation fight is a stark symbol of social and cultural divide

The debate over whether to confirm Justice Brett Kavanaugh to the U.S. Supreme Court used to be about abortion, judicial precedent, even questions about whether sitting presidents should be vulnerable to lawsuits and indictments. Those were substantial issues, dividing lawmakers and the country.

But that was last week. This week, the Kavanaugh matter is a stark symbol of a social and cultural issue that roiled the country and created the #MeToo movement long before the nominee’s name was known outside legal circles.

On Thursday, accused and accuser – Justice Kavanaugh and Christine Blasey Ford, the California research psychologist who says he sexually assaulted her – are expected to appear for televised interrogations before the 21 members of the Senate Judiciary Committee.

In all of this – charges and denials, assumptions and assertions, all as midterm congressional elections approach – only one thing is clear as Prof. Ford and Justice Kavanaugh gird for the climax of a struggle that has riveted the U.S. capital and riven the country.

‘’Turning the Supreme Court into an instrument of polarized politics,’’ Martha Minow, the former dean of the Harvard Law School and now the occupant of a prestigious endowed chair there, said in an interview, ‘’is bad for the country, bad for the rule of law and bad for everyone.’’

But it is too late for that. In the past, lawmakers often put aside their views on vital contemporary issues and confirmed nominees on the basis of their legal bona fides. In the documentary film RBG, centred on liberal Supreme Court jurist Ruth Bader Ginsburg and one of the highest-grossing independent productions of the year, GOP Senator Orrin Hatch of Utah, now the chairman of the judiciary committee, is quoted saying that he disagreed with Justice Ginsburg but supported her 1993 nomination because of her sterling legal credentials.

The Kavanaugh episode is one of the few times that a nominee to the high court is himself the focus of vital issues that he likely will be called to address in a long Supreme Court career.

‘’The political and the personal have become entwined precisely at the nexus of the #MeToo movement with issues like sex equality in the workplace and in matters of reproduction and abortion,’’ said Laurence Tribe, a onetime Supreme Court clerk who is a prominent Harvard Law expert in constitutional law. The result, he said, was ‘’the first occasion in our history in which the long-term legal stakes of a particular nominee’s confirmation and the issues of character and attitude presented by an explosive personal accusation profoundly overlap.’’

In the dramatic denouement of this matter – the first time in the NBC News/Wall Street Journal Poll where public opinion stands against the confirmation of a high-court nominee – much will depend on the poise and presentation of the two principals, both of whose public images have been boosted by their supporters and demeaned by their opponents. Their credibility rests on their memory, or lapses of memory, of an incident that occurred three decades ago, when they were students in prestigious private high schools where the weekday academic standards were rigorous and the weekend social behaviour was raucous.

Now the destiny of Justice Kavanaugh – who, according to Washington Post reports Sunday, grew uncomfortable in preparation sessions last week when speaking of sexual and drinking practices – may depend less on unresolvable questions of the two principals’ pasts than on unforgiving elements of mathematics.

From the start, Justice Kavanaugh’s confirmation rested largely on whether two moderate women in the Republican Party, Senators Lisa Murkowski of Alaska and Susan Collins of Maine – two lawmakers from sparsely settled northern states who are supporters of legal abortion and profound skeptics of President Donald Trump – defect from the GOP line.

Now there are more variables: Not only the 10 Democratic senators who are up for re-election in six weeks in states that voted for Mr. Trump in 2016 but also Republican senators with large numbers of suburban voters and Independents. The NBC/Wall Street Journal Poll showed that suburban women, who opposed Justice Kavanaugh’s confirmation by seven percentage points in August, now do so by 11 percentage points, while Independents, who supported him by 15 points in August now oppose him by 16 points – a dramatic swing of 31 points.

Bruising Supreme Court nomination fights are relatively rare, though the Kavanaugh episode raised uncomfortable comparisons to the ferocious debate over Justice Clarence Thomas, charged in 1991 by a colleague with sexual harassment. He was confirmed. But more than a century earlier, Caleb Cushing – forgotten today but a respected five-term congressman, diplomat and attorney-general under president Franklin Pierce – was nominated to the high court by president Ulysses Grant only to prompt a firestorm of protest about the nominee’s support for states’ rights and slavery in the Civil War era.

Mr. Grant eventually withdrew the Cushing nomination, a result Democrats would celebrate in the Kavanaugh episode — until Mr. Trump selects a jurist even more conservative and even less palatable to them than the current nominee. Such a move would turn the midterms into a fierce battle over the future of the court.