Sunday, October 7, 2018


Weekend Roundup

Story of the week: It's official: Brett Kavanaugh just became the least popular Supreme Court justice in modern history. The Senate vote was 50-48, almost a straight party vote. The Republican advantage in the Senate is 51-49 (counting Angus King and Bernie Sanders as Democrats). Trump's first Supreme Court nominee, Neil Gorsuch, was confirmed by 54-45, with all Republicans and three Democrats (Manchin, Heitkamp, and Donnelly). Opposition was clearly political: Republicans had made it so by their refusal to even hold so much as a hearing on Merrick Garland, Obama's moderate nominee for the seat, turning it into a spoil for the 2016 election winner. But other than being cut from the same political cloth, Gorsuch had no personal baggage that made his nomination controversial.

Republicans have dreamed and schemed of reversing the Court's "liberal bent" -- really just an honest belief that the Constitution protects individual and minority civil rights -- ever since Nixon's "southern strategy" nominated Clement Haynsworth and, failing that, G. Harrold Carswell in 1969. The Republican campaign took an even more extremist turn when Reagan nominated the blatantly ideological Robert Bork in 1987 (after having slipped Antonin Scalia by in 1986). But only with GW Bush did Republicans consistently apply a rigorous ideological litmus test to their nominees. (Bush's nomination of Harriet Myers was quashed by hard-liners who didn't trust her to be conservative enough. They were still livid that his father's appointment didn't turn out to be as reliably reactionary as Scalia and Clarence Thomas.)

Kavanaugh turned out to be a very different story (from Gorsuch), yet the result was nearly the same. Only one Democrat (Manchin) voted for Kavanaugh, while one Republican opposed the nomination (Murkowski, who wound up not voting in an offset deal with an absent Republican senator). The first problem Kavanaugh faced was that he would replace Anthony Kennedy, who's run up a dreadful record in recent years but was still regarded as a moderate swing vote between the two polarized four-member camps. Kavanaugh would tilt that balance 5-4, allowing conservatives to rule almost arbitrarily for their political sponsors. Second, he was a person whose entire career was spent as a political operative: most notably as part of the Ken Starr prosecution of Bill Clinton, and later in the Bush White House where he argued for ever greater presidential power (at least for Republicans). A big part of the early debate over his nomination concerned discover of the paper trail of his partisan activities against Clinton and for Bush. His supporters in the White House and Congress made sure that those documents were never made available, and as such the extent of his partisan corruption was never properly aired.

His record as a DC Circuit Court judge was also largely unexamined, although his ruling, since overturned, against a detained immigrant girl who wanted to obtain an abortion, is a pretty clear signal that his views on abortion show no respect for "settled law." This case also shows his contempt for immigrants and refugees, his willingness to apply the law differently for different classes of people, and his reticence to restrain abuses of government power (at least against some people). I've long believed that the proper role for the Supreme Court is to build on the best aspirations of the Constitution to make government serve all the people, to protect the rights of minorities and individuals from the all-too-common abuses of power. Through much of my life, the Court at least leaned in that direction -- often not as hard as I would like, but their rulings against segregation, to defend a free press, to establish a nationwide right to abortion and most recently to marriage, have been major accomplishments, consistent with the understanding of America I grew up with, as a free, just, and egalitarian nation (ideals we haven't always achieved, but that we most often aspired to).

So, when I'm faced with the question of whether a given person should be given the responsibility of serving on the Supreme Court, the only question that matters to me is whether that person will understand and shape the rule of law in ways that promote greater freedom, equality, and justice, or not. After a fair investigation, I see nothing whatsoever that suggests to me that Brett Kavanaugh is a person who should be entrusted with that responsibility. In fact, what evidence I've seen suggests that he would actually be worse than any of the four partisan conservative judges currently on the court. To my mind, that should have been enough to settle the matter -- although between the fact that Republicans tend to vote as an arbitrary pack, and the tendency of many "moderate" Democrats to defer to Republican leadership, that wouldn't have been enough to defeat Kavanaugh.

However, Kavanaugh's confirmation didn't solely hinge on whether he'd be a good or bad Justice. It wound up turning on whether he was guilty of sexual assault, and whether he lied under oath about that charge (and ultimately about many other things). With these charges, Kavanaugh's confirmation wound up recapitulating that of Clarence Thomas back in 1991. The charges are slightly different. Thomas was accused of making grossly inappropriate office comments, which was especially grievous given that he ran (or mis-managed) the Reagan administration office responsible for regulating such matters. The initial charge against Kavanaugh was that as a high school student he had committed a drunken assault on a girl, which stopped barely short of rape. (Others subsequently came forward to charge Kavanaugh with other acts of drunken, sexually charged loutishness, but none of those women were allowed to testify or further investigated.)

You can read or spin these charges in various ways. On the one hand, sexual assault (Kavanaugh) is a graver charge than sexual harassment (Thomas); on the other, Kavanaugh was younger at the time and the event took place at a party when he was drunk, whereas Thomas was at work, presumably sober, and effectively the boss of the person he harassed. It is unclear whether this was an isolated incident for Kavanaugh, or part of a longer-term pattern (which is at least suggested by subsequent, uninvestigated charges, plus lots of testimony as to his drinking). Still, the one thing that was practically identical in both cases is that both nominees responded with the same playbook: blanket denials, while their supporters orchestrated a smear campaign against the women who reluctantly aired the complaints, while trying to portay the nominees as the real victims. Thomas called the charges against him a "lynching." Kavanaugh's preferred term was "hit job." Neither conceded that as Supreme Court nominees they should be held to a higher standard than criminal defendants. In the end, in both cases, marginal Senators wound up defending their vote as "reasonable doubt" against the charges. There was, after all, nothing admirable about being charged or defending themselves in such a disingenuous way. Both cases have wound up only adding to the cynicism many of us view the Courts with.

I'll tack on a bunch of links at the end which will round up the details as we know them, as well as other aspects of the process, not least the political rationalizations and consequences. But one thing that I think has been much less discussed than it should be is that neither Thomas nor Kavanaugh promoted or defended themselves on their own. I don't know who was the first Supreme Court nominee to hire lawyers and publicists to coach in the confirmation process, but the practice goes back before Thomas. I was reminded of this when John Kyl was appointed to fill the late John McCain's Senate seat. At the time Kyl was working for a DC law form representing Kavanaugh for his confirmation, so Kyl instantly became Kavanaugh's most secure vote. That nominees need help managing their egos and loose tongues was certainly proved by Bork, who managed to alienate and offend 58 Senators (almost all of whom had previously voted for Scalia, not exactly known for his tact). Mostly this handling means to make sure that the nominee doesn't say anything substantive about the law that may raise the hackles of uncommitted Senators, so the handlers only get noticed in the breech of an inadvertent gaffe. However, when something does go wrong, the first decision is whether to fight or flee -- since Nixon fought for Haynsworth (and lost), over a dozen nominees have simply withdrawn, often when faced with far less embarrassing charges than Thomas or Kavanaugh. As we saw with Myers, a nominee with no natural Democratic support can be brought down by a handful of vigilant Republicans, allowing the fringe of the party to insist on a harder candidate.

With a 51-49 majority, it wouldn't have taken much more than two Republicans to force Trump to withdraw Kavanaugh, but in the end only Murkowski opposed, and she was offset by Manchin (not that Pence wouldn't have been thrilled to cast a 50-50 tiebreaker). A couple of Republicans waffled a bit, but Collins and Flake have a long history of feigning decency then folding, and most simply don't care how bad a candidate looks (e.g., they voted for Betsy DeVos). They're quite happy to win with a bare minimum of votes, even when the polls are against them (e.g., their corporate income tax giveaway), figuring they can always con the voters again come election day. The problem with replacing Kavanaugh with a less embarrassing candidate came down to timing: restarting the process would have pushed it past the election into lame-duck territory, and possibly into the next Congress, which will likely have fewer Republicans (although not necessarily in the Senate). Never let it be said that the Republicans have missed an opportunity to gain an advantage -- and there are few prize they covet more than control of the Supreme Court.


Further links on the Cavanaugh Nomination:


Some scattered links this week: