Brett Kavanaugh’s illegitimate hearing and appointment on the Supreme Court may seem all but inevitable. But that doesn’t mean the Democrats have failed the majority who don't want to see him on the bench.
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Democrats face a nearly insurmountable battle in derailing the nomination of Brett Kavanaugh to the Supreme Court. The only way to do so—and it is a distant one—is for the entire Democratic caucus to vote no, and for two Republican senators to join them. Certainly any Republican senator who blocked a GOP nominee would normally need to hail from a blue or purple state where their reelection is at stake. Yet Democrats and special interest groups do not seem to be targeting Nevada senator Dean Heller, who, until last week, held the most vulnerable seat in the Senate. I have to assume that Heller’s strategy is that his “no” vote would enrage Republicans and depress his support there more than a “yes” vote would affect Democrats already voting against him.
Most instead have concentrated their hopes on GOP senators Lisa Murkowski (AK) and Susan Collins (ME), who have indicated their reluctance to see Roe v. Wade overturned. Collins is doing her usual “undecided” routine and has liberals despairing of her good faith, suspicious of her claims that she is taking the issues into consideration. (Given that one would have to be willfully blind not to see that Kavanaugh is chomping at the bit to overturn or neuter Roe, this suspicion seems warranted, which is why liberals have already raised nearly $1 million with which to fund Collins’s as-yet-unidentified opponent should she vote “yes,” and have flooded her office with calls and 3,000 coat hangers.)
For reasons that go well beyond my antipathy to Kavanaugh’s clear policy predilections and his pre-judge career as a rabid Republican operative, I’d like to see a total lock-step Democratic opposition. I believe this nomination is per se illegitimate. It comes from a president who is under investigation because his claim to the office is itself increasingly illegitimate in light of his status as an unindicted co-conspirator in a federal crime, and for Russian interference in his election—not to mention his own anti-democratic conduct. And this nominee was selected precisely for his extremist views on executive power, and for his aggressively polarizing views on the country’s most important socio-political issues, at a time when the GOP represents the viewpoints of, at most, a quarter of all Americans.
Remember: Trump did not win the popular vote. And he only “won” Michigan, Wisconsin, and Pennsylvania with a mere 78,000 votes combined, after spending the prior few months gleefully capitalizing on Russia’s theft of DNC emails and possibly even coordinating with Russia on the publication of those stolen documents. He has never had anything close to a mandate, yet from the inception of his presidency, he has rejected any attempt to act on behalf of all Americans and instead has pointedly acted only on behalf of himself and his base. Further, he has actively attacked everyone who is not in his base, engaging in a daily assault on the rights and dignity of people of color, LGBTQ people, immigrants, Muslims, women, the disabled, and anyone who criticizes him, not least of all, the intelligence community. But he is also actively engaged in a daily assault on democracy and the rules and norms and institutions necessary for our society to function. Trump attacks truth, the judiciary, the free press, the post–World War II world order that the U.S. itself designed, human and civil rights, this country’s treaty obligations, and the environment, not to mention his active embrace of inequality and corruption and his rejection of decency, civility, and empathy. And Republicans have also, with increasing brazenness, advanced the power of corporations and the ultra-wealthy at the expense of all other Americans, while largely refusing even to condemn, much less to check, Trump’s other misconduct.
As a result, if Kavanaugh is confirmed, the GOP will have cemented its project of imposing the will of the entitled, privileged few on the majority of this country, in violation of democratic principles. Indeed, the Republican eagerness to force a right-wing extremist onto the Court in this context and in the face of public opposition reflects contempt for a democratic process. It is critical to note that Trump could have nominated a centrist jurist, or a center-right jurist; he could have picked a Republican-leaning judge who did not have a history of extreme partisanship and whose political and policy views were in the legal mainstream rather than pushing the envelope of right-wing ideology, as Barack Obama did with Merrick Garland. But Trump, of course, did the opposite. To install on the Supreme Court, potentially for 40 years or nearly two generations, a man whose views are at odds with those of most Americans and who is in the position to remake and unwind the social progress of the last 50 years, is to put the very legitimacy of the Supreme Court into question. And Republicans are if anything more to blame in that than Trump himself.
For it is quite plain that Trump has no coherent vision for America outside of his narcissistic urge to dominate others and collect spoils for himself. Devoid of ideology, he uses the court nomination process solely as an exercise of raw power and nominates whomever his team tells him to in order to satisfy their corporate donor and evangelical base. Preserving the integrity of institutions is not important to him; respecting the democratic process is alien. The crisis of legitimacy from the Republican imposition of pro-corporate, anti-individual, anti-education, anti-fact, anti-tax, anti-climate, anti–human rights, anti-decency policies, secured through active disenfranchising measures and anti-democratic conduct, is growing, and the installation of Kavanaugh will further accelerate this country’s descent from democracy into kakistocracy and oligarchy.
Frankly, no judicial nominations should proceed given that Trump is an unindicted co-conspirator in a crime, and given that he is a target of the special counsel’s investigation into Russia’s attack on our election in 2016 and whether Trump has obstructed justice. The likelihood that Trump committed serious crimes before he was “elected,” that he did so in the context of getting so-called elected, and while in office, is substantial.
But against this backdrop, the Republicans who control the Senate have fast-tracked Kavanaugh, ramming through these hearings by discarding process, norms, and precedent, refusing to allow the National Archives the needed time to gather and produce Kavanaugh’s extensive record of documents and needlessly truncating the time frame for robust questioning. And they did this after despicably refusing to meet with or hold hearings for Merrick Garland during the last year of Obama’s presidency and after vowing to block any and all Supreme Court nominees of Hillary Clinton should she have won. (Supposed “maverick” John McCain was a proponent of this obstruction.)
So I would love to see all Democratic senators oppose this nominee for three reasons: the illegitimate context in which the nomination comes; the illegitimate manner in which the hearings were rushed and documents withheld; and the nominee himself, whose views are far too far outside the mainstream be placed in a position of deciding cases that will affect the lives of the overwhelming majority of Americans whose views he essentially repudiates. United Democratic opposition is necessary to highlight this triple-illegitimacy and to try to fight against it.
I recognize that this is a risky and difficult call to make; vulnerable Democratic senators fighting for their political lives in red states that Trump won by wide margins (such as Missouri Sen. Claire McCaskill, North Dakota Sen. Heidi Heitcamp, and West Virginia Sen. Joe Manchin) could lose their seats for voting “no” in an effort that itself may well prove futile, with the result not only that Kavanaugh is confirmed but that Republicans increase their Senate majority. (Anyone suggesting Schumer is weak for not whipping his caucus on this is ignoring political reality.) But given what is at stake, I think that these senators must find specific issues of most concern to their constituents and highlight to them why Kavanaugh would hurt them, explaining their “no” vote in principled terms that will resonate—e.g., his consistent support for corporations over workers. Only a united Democratic front could possibly put enough pressure on Collins and Murkowski to act, because they do not want their legacies to be as the women who helped overturn Roe.
All of this was swirling in my mind as I watched the Kavanaugh hearings last week, wondering what exactly the Democrats’ strategy was. Some people thought the Democrats should walk out of the hearing after laying the groundwork for the unfairness of the timing and the process. But I think the Democrats were right to highlight the illegitimacy of the hearing process while still participating, since only with their full participation could illegitimacy be fully exposed, along with other issues.
Obviously, the Democrats know Kavanaugh is likely to be confirmed, so what exactly were they hoping to accomplish? They needed to show their own base that they were fighting for us. They needed to expose Kavanaugh’s record, to show other sitting senators and the country just how out of the mainstream his views are; how he manipulates his supposed commitment to “textualism” to secure whatever policy result he wants, including through tortured interpretations of plain language; how lacking in common sense and empathy his positions and decisions are, and how devastating to the lives of most Americans his decisions are likely to be based on his record—in particular, his disdain for Roe, his support for corporate interests, his rejection of the ability of legislatures to regulate assault weapons, and his expansive view of presidential power. They were looking for ways to expose him as a liar/perjurer—either to catch him in a lie under oath (opening the door for perjury charges and potentially forcing Republicans to withdraw their support) or getting him to lie under oath (laying the groundwork for future impeachment after Democrats regain subpoena power) or to demonstrate that he had previously lied under oath. The Dems were also highlighting that the context of this nomination makes the entire process an untoward and illegitimate travesty—namely, a president under a cloud of suspected criminal activity and whose own staff recognizes, along with the left and non-elected Republican apostates like David Frum, George Will, Ana Navarro, Nichole Wallace, Steve Schmidt, and Max Boot, that Trump is unfit for office and a threat to the country and the world. And they were also highlighting that the process set up by Sen. Chuck Grassley (R-IA) was itself undemocratic and unprecedented and illegitimate, because of the unnecessary rush, the improper withholding of millions of pages of documents, and the improper redactions of the documents that were disclosed. (The Democrats accomplished all of these goals but spent far too much time on the fifth one, and far too little time on the fourth; I just don’t see people getting too exercised about documents and redactions.)
But I realized that the Democrats were also working to demonstrate something we all know intuitively, but that for some reason no one was willing to come out and say to Kavanaugh’s face until nearly the very end of third day: that not only the process, but the nominee himself, is tainted by the cloud that Trump is under.
In asking for him to commit to recuse himself in cases involving the Mueller investigation, in asking whether he thinks Trump is a man of good character, in asking whether he agrees that “both sides” were responsible for Charlottesville, in asking for him to admit to his previously stated positions on nearly untrammeled executive power, and obtaining from Kavanaugh only evasive, canned, blotchy-faced refusals to answer very simple questions, the Democrats exposed Kavanaugh’s lack of candor and credibility, and fundamental taint.
They showed that his claims of integrity are corrupted both by the context and by his unwillingness to answer basic questions. They showed that Kavanaugh is now clouded by suspicion. By noting that it appears that Trump nominated him precisely because of his public statements about executive power and in particular his apparent belief that a sitting president cannot, consistent with the Constitution, be criminally investigated and/or indicted, the Democrats exposed that the nomination itself is hopelessly tainted. Kavanaugh, for his part, turned down opportunity after opportunity to condemn the sped-up confirmation process, or to agree that a better process would allow for his full record to be evaluated, or to admit to or recognize the extraordinary and negative context of his nomination, or to recuse himself and remove the taint. His stammering repetitions of the same tired “judicial independence prevents me from commenting [on any difficult questions I don’t want to answer]” convinced no one but the partisans who are looking to install him.
And what was the effect of this? What, precisely was the point?
To box him in, so that if he is confirmed, not only will his appointment itself be forever tainted by the cloud of impropriety and suspicion that he is unable to dispel, but he will be under massive pressure to actually recuse himself when issues concerning the Russia investigation come before him. Similarly, if he does not recuse, there will be enormous pressure on him to take a less expansive view of executive power that he might otherwise want to when deciding those cases. To decide in Trump’s favor will have the appearance of a quid pro quo and forever taint both Kavanaugh’s reputation and the legitimacy of the Supreme Court itself. It could also expose him to investigations and potential impeachment.
Indeed, just as Kavanaugh testified that everyone knew Plessy v. Ferguson, the notorious “separate but equal” decision, was wrongly decided when it came down in 1896, if Trump is allowed to obstruct justice or get away with other abuses of power on 5-4 grounds after Kavanaugh is confirmed, the legitimacy of the Supreme Court will be deeply impaired, and Kavanaugh is too smart not to know that.
Will he care? I believe Democrats think he might, and that they are setting him up to box him into doing less than the wrong thing if he gets on the bench—at least when it comes to the power of the presidency under Trump.
Of course, even if I am correct in that guess, it offers scant comfort as to Kavanaugh’s integrity. Indeed, I have a hard time accepting the testimonials as to this man’s supposed integrity (some of which come from people I know personally and respect). For if he had real integrity, he would have recognized the taint surrounding his nomination and declined it. If he had a modicum of integrity, he would have agreed that the hearing should wait until his records were all released, with adequate time for their review and for challenges to executive privilege designations to be resolved. If he had a modicum of integrity, he would have committed to recuse himself on cases that clearly implicate a potential quid pro quo with Trump. If he had a modicum of integrity, he would not have consistently weaseled his way out of saying a single word of disagreement about Trump during the hearings.
Thanks to the Democratic senators’ participation in the hearings, we now know Kavanaugh as much by what he refused to say and to do during the hearings, as by what he has said and done in the past (which is itself deeply problematic). He is forever tainted by Trump and by his eager participation in the Republicans’ disgraceful charade. He, like the man who nominated him, is illegitimate.
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