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Expect partisan battle over Justice Brett Kavanaugh to continue 

Demonstrators on Friday protest against the appointment of

Demonstrators on Friday protest against the appointment of Supreme Court nominee Brett Kavanaugh on Capitol Hill in Washington. Credit: AFP / Getty Images / Jose Luis Magana

WASHINGTON — The deeply partisan political battle over Justice Brett Kavanaugh likely will continue during his first year on the Supreme Court, even as he tries to fulfill his promise to become a member of what he called the "team of nine."

Washington’s divergent partisan views of Kavanaugh — Republicans hail him as supremely qualified and ill-treated, and Democrats doubt his credibility and impartiality — have shown up in polls taken around the country.

And with his confirmation coming just a month before the midterm elections, Kavanaugh has become a wedge issue being used by President Donald Trump and both parties in campaigns for both the House and Senate.

Meanwhile, many so-far unseen Kavanaugh records from his service in the George W. Bush White House will be made public at the end of October by the National Archives, possibly raising new questions — though the avalanche of papers made public so far included few terribly revealing notes.

And if Democrats win the House, Rep. Jerrold Nadler (D-Manhattan) said that as the Judiciary Committee chairman, he plans to launch his own investigation into the sexual misconduct claims against Kavanaugh and the limited White House and FBI investigation into them.

“It is not something we are eager to do,” Nadler told The New York Times Friday, but he added it’s necessary because "the Senate failed to do its proper constitutionally mandated job of advise and consent.”

Like Justice Clarence Thomas, who endured a blistering confirmation process over his political and ideological leanings and a last-minute sexual harassment accusation, Kavanaugh’s every word from the bench and written opinion will be scrutinized.  

Kavanaugh will have to carefully weigh which cases he takes, and which he sidesteps, or recuses himself from, to avoid conflicts of interest, after his partisan attack on Democrats and allied outside groups at the special Senate hearing 10 days ago.

Citing “his intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies,” liberal Harvard law Professor Laurence Tribe wrote, “disqualify him from participating in a wide range of the cases” before the court.

In his 12 years as a D.C. Circuit Court judge, Kavanaugh said in his Senate questionnaire to be a member of the Supreme Court that he recused himself from 136 cases, or about 11 a year, though he recalls the reasons in only 46 cases.

Those included several high-profile political conflicts involving his years in the Bush administration, a civil suit Valerie Plame brought against several government officials for revealing her CIA affiliation, and a suit seeking to enforce a congressional subpoena requiring White House aides to produce information relating to the dismissal of nine federal prosecutors.

But Kavanaugh will have “the incredibly unique role of being in essence the judge as to his own ability to be impartial,” said James Sample, a Hofstra Law professor and expert on judicial recusals, in an interview.

“The general standard is that a judge shall disqualify himself or herself whenever the judge’s impartiality might reasonably be questioned,” Sample said. A canon of ethics is binding on federal district and appellate court judges, but not on Supreme Court justices.

The court and other justices are expected to work to make Kavanaugh part of their team, Sample said.

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