The SCOTUS pick, like Trump himself, did not happen in a void. Their rise has been long planned by the GOP.
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Conventional wisdom says that Judge Brett Kavanaugh’s appointment to the Supreme Court of the United States is a gift to the rabidly anti-abortion conservative evangelicals who have revealed themselves to be the most coldly cynical transactional voters in the country, throwing their loyalty behind the crude, fascist brute in the White House. It’s tempting to see this nihilistic lust for power as a symptom of Trumpism. But this goes much further back than that. Trump’s 2016 victory has simply brought GOP officials and the conservative movement leadership out in the open, and forced them to admit that they are not organized on the basis of a long intellectual tradition, but are, instead, a cynical political faction that uses propaganda and unscrupulous tactics to obtain and hold power.
Conservatives have long insisted on a fatuous conceit that they are “the party of ideas” driven by an intellectually rigorous adherence to a strict set of principles metaphorically defined as resting on an ideological three-legged stool of family values, small government, and patriotism. They used this framework to justify state-mandated conservative religious morality and patriarchy, laissez-faire economics to uphold white supremacy and an ever-growing global military empire. Academics and writers worked through these issues and they were quite successful in creating an ideological schema that politicians honed into poll-tested catchphrases and symbols designed to signal tribal affinity to American voters.
It is obvious in retrospect that the intellectual underpinnings of the modern conservative movement that evolved from its beginnings in the John Birch Society to its full glory in the Reagan Revolution were a bit of a con. The original influential thinkers were certainly serious in building their ideology, but as a practical political project, it always served as cover for the preservation of the white-supremacist patriarchal instincts of the reactionary American right wing.
At times they even admitted it out loud. Back in the 1980s, the notorious Republican strategist from South Carolina (and partner of Paul Manafort and Roger Stone) Lee Atwater famously put it in these crude terms:
“You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you can’t say ‘nigger’—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites … ‘We want to cut this,’ is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than ‘Nigger, nigger.’”
Richard Nixon’s savvy political understanding that the Democrats were going to lose their traditionally racist Southern faction when they embraced civil rights was key to the GOP adopting that strategy. And it was actually a more natural fit. The Republicans had long been the party of the wealthy who already resented redistributionist policies to support the welfare state and the anti–civil rights whites likewise believed their taxes were going to support the undeserving African-Americans and were happy to give them their votes. This faction overlapped with the growing conservative evangelical movement and the long-standing Southern affinity for military culture.
Nixon was also an unscrupulous, dishonest, paranoid political operator who engaged in the dirtiest political campaigning and abuse of presidential power in American history at the time. For the nascent modern conservative movement, this was a feature, not a bug. Historian Rick Perlstein reported this anecdote in his 2009 history of the era, Nixonland: The Rise of a President and the Fracturing of America, when he recounted that M. Stanton Evans, a legendary movement godfather, stood up. “He said my invocation of Richard Nixon was inappropriate because Richard Nixon had never been a conservative,” Perlstein writes. “He proceeded, though, to make a striking admission: ‘I didn’t like Nixon until Watergate … at which point, apparently, Nixon finally convinces conservatives that he could be one of them.’”
He had them at “cover-up.” More than any other politician, Richard Nixon is the father of the modern conservative movement. And Brett Kavanaugh is one of his direct heirs. Despite their ruthless cynicism, the movement leaders demanded that they be perceived as serious ideologues. Among the intellectual framers of the modern conservative movement were professionals in the economic and legal spheres: Milton Friedman and Friedrich Hayek and even the novelist Ayn Rand were hugely influential in shaping the way Americans understood capitalism and their personal relationship to the state and the private sector. Likewise, conservative legal scholarship organized under the auspices of the Federalist Society and throughout the federal judicial system, including the Supreme Court where schools of thought around “originalism” and “strict constructionism” often dominate. For decades conservative intellectuals who espoused the principles embodied in these various strands of the movement were taken very seriously.
Over the past few years that image has frayed. The economic crash exposed the economic right’s intellectual bankruptcy as they resorted to innumeracy and rank dishonesty in service of the Republican party’s political goals. The conservative legal community has likewise twisted itself into a pretzel in recent years to accommodate the partisan line, with Supreme Court rulings like Bush v. Gore and more recently, Shelby County v. Holder, decisions made to create a blatant political advantage to the GOP.
Nonetheless, until now, the Federalist Society, which serves as a conservative pipeline to the federal bench at all levels, has promoted accomplished people to serve on the high court. They may be extremely conservative but they have generally been people of personal integrity and high intellectual standards (Justice Clarence Thomas’s sexual harassment accusations notwithstanding). With the exception of the late Chief Justice William Rehnquist’s early forays into voter suppression in Arizona in the 1960s, none of them started their professional lives as political operatives, and certainly, none made their bones in a rank ploy to take down a president for purely partisan gain.
But that’s who Brett Kavanaugh is: a protégé of former Independent Counsel Ken Starr who was called to join the crusade against the Clintons back in the 1990s. Kavanaugh immediately persuaded his boss to reopen the White House counsel Vince Foster’s suicide case despite the fact that it had already been investigated by both houses of Congress, the police, the FBI, the Park Service, and previous Independent Counsel Robert Fiske. He got approval from Starr by pointing out that there were rumors being floated in the right-wing fever swamps, notably Rush Limbaugh, that Hillary Clinton had been having an affair with Foster and that he’d been killed in an apartment she secretly rented after which his body was moved to the park where it was found.
Kavanaugh spent three years pursuing this crusade and squandered $2 million until he finally moved on to the Monica Lewinsky matter, a much more fruitful cause which he took to with relish. The work he produced for the Starr investigation included an angry memo he wrote before the special counsel questioned the president:
“He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear—piece by painful piece—on Monday. I am mindful of the need for respect for the Office of the President. But in my view, given what we know, the interests of the Office of the President would be best served by our gathering the full facts regarding the actions of this President so that the Congress can decide whether the interests of the Presidency would be best served by having a new President. More to the point: Aren’t we failing to fulfill our duty to the American people if we willingly ‘conspire’ with the President in an effort to conceal the true nature of his acts?”
According to The Atlantic‘s James Fallows, “in 1990s D.C. journalism, Kavanaugh was known as the guy leading a vendetta about Clinton ‘immorality,’ with lurid and clinical details,” and he certainly did, proposing that the Independent Counsel ask the president question after question about sex acts between himself and Monica Lewinsky in pornographic living color. His imagination was remarkably vivid for such an allegedly buttoned-up young Christian. Let’s just say that the recent allegations about Kavanaugh drunkenly assaulting women during his frat-boy years aren’t exactly unbelievable.
After his turn with Starr, Kavanaugh continued up the ladder involving himself in the most contentious partisan issues of the day from child refugee Elián Gonzáles to the 2000 Florida recount and he was rewarded for his service with important jobs in the Bush administration and a nomination to the U.S. Court of Appeals in 2003 at the age of 38. His confirmation was held up for three years as Democratic senators rightfully objected to putting an inexperienced, cutthroat political operative on the court, particularly one suspected of being involved in a notorious theft of Democratic documents—a suspicion that’s been born out as some of Kavanaugh’s papers have come to light during this confirmation process. (Those papers are among the few that have been released from Kavanaugh’s time in the White House where he worked on some of the most contentious issues of that contentious time.)
Does Donald Trump know anything about this? Probably not. His knowledge of any history, much less the arcane Nixonian partisan trench warfare of the past few decades, is nil. Kavanaugh’s over-the-top flattery of Trump in his nomination acceptance speech showed that the president had been won over with obsequious flattery and likely a pledge of loyalty. But the Federalist Society, led by a man named Leonard Leo, knows very well who Kavanaugh really is. The White House counsel Don McGahn is a lawyer who’s spent his career rolling around in the partisan mud as well. Certainly, the Republicans in the Senate and those who worked in the Bush administration know that Kavanaugh hailed from the dark underbelly of the Republican Party’s operation that spent years trying to destroy the Clinton presidency.
Putting Kavanaugh on the Supreme Court isn’t just a reward to the evangelicals who want to overturn Roe v. Wade. Any right-wing judge would and could have done that task. Kavanaugh is a hero of the culture war, a character assassin and dirty trickster ascended to the highest honor the party can bestow with a lifetime term of office. He’s a reward to them.
He was all set to be confirmed on a party-line vote but his past as a heavy-drinking prep-school frat boy has come back to haunt him. He has been credibly accused of sexual assault as a student—anyone could have seen that the man’s character is compromised in a number of different ways, not the least of which is his propensity to lie, but does the GOP care? Apparently, not, because the party has lined up in lockstep behind him going so far as to have one of Washington’s conservative legal luminaries, a man named Ed Whelan, create an alternate theory in which the first of the reported victims had confused Kavanaugh with someone else, even naming a classmate of Kavanaugh’s based upon their high-school yearbook pictures. Whelan was forced to retract his accusations when it was pointed out that they were absurd and defamatory and has now taken a leave of absence from his job as the head of the Ethics and Public Policy Center. They don’t make Nixonian character assassins the way they used to.
As I write this, we don’t know how Kavanaugh’s story will end. Another woman has come forward to say that he assaulted her in college and there is word of others following. The president and the Republicans in the Senate are standing by him so far but it’s possible that he could end up withdrawing if there are more accusations or if testimony before the Senate Judiciary Committee changes the dynamic.
It is tempting to think that Donald Trump is the change agent who brought this chaos and crisis to our democracy. And it’s certainly true that its lurched into overdrive since his election. But this has been a long time coming. Starting with Nixon, the party promoted, enabled, and supported a cadre of partisan operatives like Kavanaugh and eventually they took it over. A corrupt, incompetent, angry president is a natural consequence.
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