ArcaMax

WASHINGTON -- "The Supreme Court must never, never be viewed as a partisan institution," Brett Kavanaugh observed at the start of his testimony before the Senate Judiciary Committee.

That was September 4, just over a month ago, but it feels like an eternity -- before the country was convulsed by accusations of sexual assault against the Supreme Court nominee, now on the brink of becoming the nation's 114th Supreme Court justice.

Before Kavanaugh's volcanic, partisan attack on the Senate Judiciary Committee's proceedings as the product of "a frenzy on the left to come up with something, anything to block my confirmation."

Before the Senate, whose factional battles are never more fierce than when a Supreme Court seat is at stake, exploded into new heights of fury over the last-minute revelation of Christine Blasey Ford's allegations that Kavanaugh attempted to sexually assault her when they were in high school and over the grudging and inadequate FBI investigation that followed.

This is a dangerous, even scary, moment for the court -- one in which Kavanaugh's admonition against seeing the court in partisan terms seems laughably naive.

Indeed, even before the latest eruption of confirmation ugliness, that view was more fanciful aspiration than reality. Certainly, the view of the court as an institution above partisan politics was not furthered by Senate Majority Leader Mitch McConnell's successful blockade of President Obama's ability to fill the vacancy left by the death of Justice Antonin Scalia.

Certainly, it is not the way the president who nominated Kavanaugh envisions the institution. "We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!" Trump tweeted last March.

With the replacement of swing justice Anthony M. Kennedy, that instrumentalist Trumpian vision of Republicans definitively holding the high court is about to be made manifest. As law professors Neil Devins and Lawrence Baum have observed, the court is at a unique moment in its history, for the first time divided into clear blocs in which justices' ideological views align perfectly with the political party of the president who appointed them.

And now, after the most partisan confirmation comments by a Supreme Court nominee in history, Kavanaugh is poised to win approval, if he does, by the narrowest and most partisan vote in modern history. Justice Clarence Thomas was confirmed 52-48 -- with 11 Democrats supporting him. Justice Neil Gorsuch, confirmed 54- 45, secured three Democratic votes.

For years, the justices have been keenly aware of the institutional stakes and the looming threat to their standing in an era of increasing partisanship and broad distrust of institutions. Chief Justice John Roberts, speaking to constitutional scholar Jeffrey Rosen in 2006, following his first term on the court, emphasized the "high priority to keep any kind of partisan divide out of the judiciary" and the need to avoid having the court "seem to be lurching around because of changes in personnel."

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