Last week’s combative Senate Judiciary Committee hearings over Supreme Court nominee Brett Kavanaugh looked at times like a flash-forward to the racially infused politics that may increasingly consume the court, and the nation, through the 2020s.
If the Senate confirms Kavanaugh, which still appears likely despite sharpening Democratic questions about his honesty, he will cement a five-member majority of Republican-appointed justices. Given their ages, those five justices could control the Supreme Court for the next 15 years or more. Over that period, demographers project, the nation inexorably will grow more diverse in virtually every measurable way, from religious preference to sexual orientation and racial and ethnic composition.
That looks like a surefire formula for heightening conflict. Each of the Republican-appointed justices has demonstrated resistance to measures designed to protect or promote the interests of groups that often have been marginalized in American history, from racial minorities to gays and lesbians. And like a tightening tourniquet, the tension is likely to grow between the opposition of the Republican-appointed justices to laws that they feel unduly disadvantage whites and religiously devout Christians, and the calls from those growing minority groups for greater opportunity and inclusion.
“Ultimately if you have a court that has a vision of America that is narrow, that is not reflective of the changing demographics and the needs of the country, then the Constitution becomes a stale document and the Supreme Court becomes viewed as partisan and political,” Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, a coalition of civil rights groups opposing Kavanaugh’s nomination, said in an interview Monday. “And ultimately that serves to hurt our democracy and the rule of law because people will have much less confidence that that institution is fair.”
That coming collision was vividly previewed during last week’s hearings, particularly when Kavanaugh faced close questioning from Sens. Cory Booker of New Jersey and Kamala Harris of California, who are the two most junior Democrats on the panel and also potential presidential candidates in 2020. Booker, who is African-American, and Harris, who is of Jamaican and Indian descent, faced criticism for some of their tactics, such as Harris suggesting Kavanaugh had conducted conversations about special counsel Robert Mueller’s investigation without providing specific evidence.
But each also pointedly questioned Kavanaugh over his views on a range of questions relating to race, gender and sexual orientation, from affirmative action in employment and higher education to workplace protections for gays and lesbians. In the process, they underscored all the issues that could grow more volatile as the distance widens between a Republican-majority court and a Democratic coalition increasingly centered on the nation’s growing diversity.
If Kavanaugh is confirmed to replace Anthony Kennedy, who functioned as a swing vote on many racial and cultural issues, he will create a phalanx of conservative Republican-appointed justices that could control the court and decide the legal standards for the nation well into the 2030s. The oldest of the five Republican-appointed justices are Clarence Thomas, 70, and Samuel Alito, 68. With justices now often remaining on the court into advanced age (Ruth Bader Ginsburg is 85 and Kennedy retired just before he turned 82), each man could conceivably serve until around 2035. At that point, Chief Justice John Roberts would be 80, while Neil Gorsuch, Trump’s other appointee, would be 68 and Kavanaugh would be 70. All five are men; all but Thomas is white. All are Christian and are or were raised Catholic.
“If this coalition is as far to the right as expected and lasts for that length of time … then we should have something quite unique,” Adam Feldman, the founder of the Empirical SCOTUS blog, which studies Supreme Court trends, wrote in an email.
Over the many years that same majority could control the court, demographers project the nation will profoundly change around them. The Census Bureau forecasts that the white share of America’s population will steadily decline from about 60 percent now to 54% in 2035, en route to falling below 50 percent in 2045, for the first time in US history. The change will be especially rapid among the young: the Census Bureau projects that the white share will fall below 50% for the under-18 population as soon as 2020, and for the 18-to-34 population shortly before 2030.
Much greater religious diversity is approaching as well. White Christians represented a majority of the population for most of American history, but they have fallen to only about 2-in-5 today. Robert P. Jones, chief executive officer of the nonpartisan Public Religion Research Institute and author of the book “The End of White Christian America,” notes that white Christians are declining as a share of the population by about 1.3 percentage points a year as other groups grow, particularly nonwhite Christians and voters of all races who don’t belong to any religious tradition. At that rate, white Christians could fall to about one-third of the population by 2025 and less than one-fourth by 2035.
The five Republican justices (assuming Kavanaugh wins confirmation) have been nominated and confirmed by Republican presidents and senators elected primarily by the parts of the country least touched by these seismic changes. Nearly 90% of Trump’s votes in 2016, for instance, came from whites. White Christians, though shrinking as a share of the population, still constitute about three-fourths of self-identified Republicans. By contrast, Democrats increasingly rely on nonwhite and secular voters and the regions of the country that have most embraced cultural change, for example on issues relating to gay, lesbian and transgender adults.
That contrast was dramatized during Kavanaugh’s Judiciary Committee hearings. All 11 of the Republicans on the committee are men and all are white except for Ted Cruz, a staunchly conservative Cuban-American. The nine Democrats comprise just four white men, as well as Booker, two white women and two women of color, Harris and Sen. Mazie Hirono of Hawaii.
Each of the three nonwhite Democrats closely questioned Kavanaugh on his views about federal civil rights laws and enforcement. Drawing on Kavanaugh’s rulings and internal emails from his service in the Bush administration, Booker closely questioned the nominee on his skepticism about affirmative action, particularly in higher education; his support for race-conscious profiling at airports after the Sept. 11, 2001, terrorist attacks; rulings in which Kavanaugh had used what Booker called “racially coded language” to suggest that higher crime rates in some minority neighborhoods justified more intensive policing practices there; and his openness to voting restrictions that Republican states have imposed in recent years. In a later round, Booker pressed Kavanaugh on overhauling criminal justice.
Booker drew together these threads into one of the hearing’s most striking arguments: He maintained that Kavanaugh’s record on race-related issues demonstrated a consistent hostility to governmental use of race to promote greater opportunity for minority groups, but support for police and security officials who use race to target enforcement decisions.
“The way I see it,” Booker told Kavanaugh at one point, “you’re willing to consider using racial profiling but you’re hostile to the use of race when it is used to promote diversity and remediate past proven discrimination.”
Harris and Hirono each asked Kavanaugh about his work as a private lawyer in the late 1990s, with leading conservatives Roger Clegg and Robert Bork, opposing a Hawaii statute that limited voting for the state’s Office of Hawaiian Affairs to native Hawaiians; Harris particularly challenged him over a 1999 Wall Street Journal op-ed in which he twice described the law as a “racial-spoils system.” She also questioned him about state voter-suppression laws and his statement in an interview around the time of the Hawaii case that he believed it was “an inevitable conclusion within the next 10 to 20 years” that the court would no longer recognize distinctions in government programs based on race. Such a standard, says Gupta, in a view widely held by civil rights groups, “would gut the government’s ability to … provide modern-day remedies and tools” to remedy discrimination.
Kavanaugh responded by stressing his personal commitment to racial inclusion, including his mother’s experience teaching at two predominantly African-American high schools and his own efforts to recruit minority and female law clerks. At several points he said he recognized “the reality of racial discrimination in America exists (and) the long march for racial equality is not over.” He cited a case where he had ruled for a federal employee claiming discrimination after a supervisor used the “N-word” against him.
But continuing his determination to avoid comments on specific issues, Kavanaugh would not provide Booker and Harris with commitments to uphold almost any of the civil rights protections they cited. “That’s not good enough for a nominee to the highest court,” Booker told him at one point. Even more pointedly, Harris said Kavanaugh’s use of the phrase “racial-spoils system” amounted to “racial dog whistles.”
Kavanaugh showed more sympathy – though without more specifics – in an extended dialogue with Cruz about religious freedom, which the nominee described as a “foundational part of American liberty.” Conservatives have increasingly cited religious freedom concerns to seek exemptions from laws requiring equal treatment for gays or mandating that employers provide access to contraception in their health insurance plans.
These exchanges map the terrain of the likely conflicts ahead. If confirmed, Kavanaugh will lock in a Supreme Court majority chosen by Republicans elected primarily by the groups that have long dominated American society but are now shrinking: whites and Christians. That court majority looms as a possible seawall against a rising tide of demands for inclusion among the minority groups growing in size. Even last week’s Judiciary Committee skirmishing may seem muted as those waves crash against the court for many years to come.