Amy Kapczynski —
Thursday’s Supreme Court confirmation hearing was a stomach churning, nauseating affair. Christine Blasey Ford laid her life on the tracks, knowing full well that trains delivering important men can rarely be stopped. That was enough, but then came the turn: Brett Kavanaugh, partisan warrior. He tore into Democrats for a process almost entirely dictated by Republicans. He seethed with explosive anger, which he weaponized to advance his own career. He lied and evaded. And walked away somehow having improved his chances of being appointed to the Supreme Court.
If “courts are political,” do we have grounds to object to this display? Dani Rodrik asked a similar question on Friday in a broader frame: “How do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’? Asking for friends in Hungary, Turkey, Poland, etc.”
The question is much deeper, as he rightly points out, than our immediate American fiasco. And it is an urgent one for the LPE crowd, raised up as we were on the insights of legal realism and critical legal studies, yet committed – as we also are – to articulating a set of claims to the right and the good that could help make our democracies more fair and just.
In the coming days and weeks, a few of us will offer some ideas on these questions to see where our conversation might lead us. To start us off, I’ll expand a little on the epigrammatic answer I gave to Rodrik: “In a democratic system judges are not political in the way politicians are. They must hear all comers; give reasons; express a universal principle — they morph politics and produce universalizing argument.”