And then it was over:
A bitterly divided Senate cleared the way for Brett M. Kavanaugh to become the next Supreme Court justice as President Trump’s nominee secured the support of a handful of wavering senators in a tumultuous confirmation fight.
During a frenzied day Friday on Capitol Hill, two Republicans – Susan Collins of Maine and Jeff Flake of Arizona – and one Democrat – Joe Manchin III of West Virginia – said they would vote for Kavanaugh, whose confirmation seemed in peril three weeks ago over allegations of sexual misconduct.
Another lawmaker, Sen. Lisa Murkowski (R-Alaska), broke with her party, saying Kavanaugh was a good man but “not the right man for the court at this time.”
Their pronouncements turned Saturday’s confirmation vote into a fait accompli…
And everyone had their say:
Friday’s vote came after Trump mocked Ford at a political rally in Mississippi this week and Republicans on the Judiciary Committee issued a statement purportedly describing the sex life of another accuser – attacks decried by victims’ advocates.
Opposition to Kavanaugh largely unified Senate Democrats and has electrified an already furious Democratic base. Underscoring the strength of Democratic opposition, Minority Leader Charles E. Schumer (D-N.Y.) called Kavanaugh’s nomination “one of the saddest, most sordid chapters in the long history of the federal judiciary.”
So, women are pathetic fools and sluts, or this was tragic – choose your side – or follow that woman from Alaska:
Murkowski was the only GOP senator to break with her party. Murkowski said she made up her mind to vote against advancing Kavanaugh’s nomination as she entered the chamber to vote Friday, and detailed her opposition in a speech Friday evening, delivered to a near-empty chamber, that focused heavily on her concerns about Kavanaugh’s temperament.
“Even in the face of the worst thing that could happen – a sexual assault allegation – even in the face of an overly and overtly political process, a politicized process, and even when one side of this chamber is absolutely dead set on defeating his nomination from the very get-go, before he was even named, even in these situations, the standard is that a judge must act at all times in a manner that promotes public confidence in the independence, integrity, impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety,” Murkowski said.
She added: “After the hearing that we all watched last week, last Thursday, it became clear to me – or was becoming clearer, that that appearance of impropriety has become unavoidable.”
In short, the guy reacted like a jerk, and there was no need to send him on to the Supreme Court – there were lots of others on that list from the Federalist Society. Who needs all this nonsense?
She was not alone:
The American Bar Association, which had issued a unanimous “well qualified” rating for Kavanaugh, said in a letter sent Friday that it would reopen its evaluation because of “new information of a material nature regarding temperament” that emerged from an emotional and combative hearing last week that featured testimony from Ford and Kavanaugh.
That sets up an interesting dynamic. Kavanaugh is confirmed and takes his seat on the Supreme Court. The American Bar Association then says he is not qualified for the position. But then it’s too late to do anything about that. Trump tweets out his sneers. Republicans gloat. They can get ANYONE on the Supreme Court. But there was this:
Kavanaugh addressed his comportment at the hearing in an extraordinary op-ed in the Wall Street Journal published Thursday night, acknowledging that he was “very emotional” during his testimony and, “I said a few things I should not have said.”
“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hard-working, even-keeled, open-minded, independent and dedicated to the Constitution and the public good,” Kavanaugh wrote.
No one believed that for a moment, and Republicans seem to love that lie, or what they must have thought was a lie. He’s their man on the court. That was the point of all this in the first place.
Slate’s Dahlia Lithwick is not happy about any of this:
Donald Trump is running the table. He has managed, with his Brett Kavanaugh nomination circus, to undermine the FBI, the judicial branch, the media, and the legal academy. He’s done all that while being openly malevolent and revanchist about the dignity of sexual assault survivors in America.
Everything the man touches turns to garbage and it’s surely just a happy accident that the institutions – like courts and federal law enforcement – that have been arrayed against him will all come out of this Supreme Court nightmare both tarnished and diminished.
She sees that as inevitable:
Brett Kavanaugh started his campaign for the Supreme Court with a howler of a lie – he spoke straight into the camera and unflinchingly praised Donald Trump’s extensive and lengthy search for a fit nominee. And among the most intemperate howls he uttered during the spectacle that was last week was not just a conspiracy-minded claim about Democrats avenging the Clintons but also a throwaway line about a “calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.”
Kavanaugh always knew he would be tarred by his association with the most corrupt and venal president in history. Last week, though, he gave up all pretenses and blurted out that he was being unfairly punished for it by liberal conspiracies.
Or maybe everybody associated with Trump gets the Trump ick on them. Either way, this week, when Trump stood in front of a roaring crowd in Mississippi and mocked Christine Blasey Ford, Brett Kavanaugh perhaps realized that this too will stick to Brett Kavanaugh.
It did stick:
Kavanaugh, caught in falsehood after falsehood, and exonerated by an investigation that failed to investigate, has now managed, with his Trump-inspired performance of uncontrolled fury last week, to inject Trumpism directly into the Supreme Court. He has managed, in one short week, to secure the disapproval of more than 2,400 law professors, Republican appointee John Paul Stevens, the Washington Post, the ACLU, the American Bar Association, and myriad other entities that don’t take positions on Supreme Court nominations.
But he did fight back:
Kavanaugh has pleaded his case for evenhanded neutrality on Fox News and in the Wall Street Journal and gritted out, over and over, that he lives on the goddamn sunrise side of the mountain and screw you, America, for thinking otherwise – that last bit a very sunrise-side-of-the-mountain position to take, by the way.
Even after all that has passed, it’s hard not to contrast his conduct with that of Merrick Garland, who did not take to Fox News or the op-ed pages or anyplace else to campaign for the seat that should, by this logic, have been his. Faced with vicious multimillion-dollar ad buys that served up fabricated claims about his record, Garland sat silent. He remains silent two years later – in no small part because he understands that the Supreme Court is greater than any one man and also that any one man can break it into pieces. In the face of a yearlong vacancy, Garland said nothing, because that is what anyone who reveres the law and the Constitution would do.
But that’s not Kavanaugh, and that, in turn, does ruin the court:
Thousands of law professors have now taken sides, over his conduct at his hearing alone, and the court and the law will not easily recover from it. The reality show that is the Senate vote totters in the background. And Kavanaugh will join a bench on which his eight colleagues will have to endure a body blow to the prestige, independence, and integrity of the court itself, because Kavanaugh couldn’t stop himself from shouting polemical partisan conspiracy theories about the press and the Democrats to ensure his seat. No litigant will feel she is before an impartial tribunal and no law student will believe that the law is anything but bias and power. And the other eight justices? They will say nothing because they will understand better than anyone what has been lost this week.
Lithwick, however, offers a modest proposal that might fix what is broken here:
The eight remaining justices should vote on Kavanaugh. Let’s let them be the arbiters of whether Kavanaugh has disqualified himself, either with untruths, or partisan attacks, or with open campaigning for a seat that seems to matter to him far more than the independence and esteem of the judiciary. If the whole sorry mess of this confirmation is to be triangulated against eight jurists who are precluded from saying one word in defense of the institution on which they sit, let those jurists make the final decision.
If any one of the conservative justices wishes to break ranks and vote against Kavanaugh, so be it. If any of the liberals believes he is still fit to sit with them, it would be good to learn why. If the justices split 4–4 along partisan lines, at least we will have material proof that the institution is irredeemably broken along party lines. And if the remaining eight justices truly esteem the country, the court, and the public trust more than they like any one affable man, they could let us know. And it would be awfully good to know…
If the court is about to cement its status as a national joke, a football subject to power grabs and convenient moral blindness, maybe it would be best for the American people to see and hear that, and from the justices themselves. If and when Kavanaugh is sworn onto the court, the other eight justices will spend the better part of their lives trying to find institutional cover for the damage they have sustained this month. One might think they’d like to nip that in the bud, or at least to evince awareness of what’s happening.
Let’s allow the eight sitting justices to confirm Kavanaugh. If they want to confirm him, we can at least say that they made the choice to hurt the court themselves.
That’s a thought, but Mark Joseph Stern has other thoughts:
Democratic approval of the court plummeted after the GOP blockaded Merrick Garland, Barack Obama’s final SCOTUS nominee, and instead allowed Trump to appoint the far-right Neil Gorsuch. But while plenty of progressive advocates and politicians insisted that Gorsuch was an “illegitimate” justice in a “stolen” seat, few seriously contested the validity of his votes. That’s probably because Gorsuch didn’t alter the balance of the court and wasn’t a flagrant partisan (despite some ethical lapses). During his confirmation hearing and on the bench, Gorsuch behaved more or less like a judge, not a GOP operative out to do his party’s bidding.
Kavanaugh is different in all respects. He will drag the court far to the right, eroding Roe, marriage equality, campaign finance restrictions, voting rights, affirmative action, and the separation of church and state. Democrats’ respect for the court, already diminished, will plunge to new lows each time Kavanaugh casts the fifth vote in a controversial 5-4 ruling.
But most important is Kavanaugh’s image as both a partisan pugilist and an alleged sexual abuser. Democrats overwhelmingly believe Christine Blasey Ford’s accusation that Kavanaugh sexually assaulted her. They’re disgusted by the extensive reports of his allegedly boorish conduct throughout high school and college, including lewd sexual jokes, heavy drinking, and alleged indecent exposure. And they’re convinced that Kavanaugh lied about this behavior under oath in his testimony last week – when, in an unprecedented display of partisanship, Kavanaugh lashed out against Democrats and the broader American left.
No matter how courteously Kavanaugh behaves on the court, many Democrats will always see him as the man who blamed “friends of the Clintons” for trying to thwart his confirmation. They will dismiss his votes as the product of political bias.
That’s the real danger here, and sooner or later Democrats will, as in 2008, hold the White House and the Senate and the House, and then things could get tricky:
What if Democrats pass Medicare for All and the Supreme Court strikes it down, with Kavanaugh casting the decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the president and Congress ignore the ruling. And what if they do? What happens if the Department of Health and Human Services just implements the law anyway? It’s easy to envision the presidential statement: As the chief executive, it is my duty to enact this legislation, passed through the democratic process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court.
The federal government, acting on orders of the president, opens enrollment, and Congress appropriates the funds as planned. What can the Supreme Court do? Send its tiny police force to storm the White House?
Or imagine if the court abolishes Affirmative Action and some state – say, New Jersey – refuses to comply. Or what if the court strikes down California’s independent redistricting commission, granting state legislators untrammeled ability to gerrymander congressional districts, and the governor insists on preserving it? The same goes for all manner of progressive reforms that could be on Kavanaugh’s chopping block, such as minimum wage laws and public financing of elections.
Blue states may be pressured to disregard his decisions. And the president could decline to compel them to follow the high court’s rulings.
All of that may seem absurd, but Stern says it’s not:
In 2003, Justice Stephen Breyer referred to the “miracle” of national compliance with the court’s edicts, even in the wake of “controversial decisions” like Bush v. Gore. There is nothing inevitable or self-sustaining about this “miracle.” Courts do have some tools to mandate adherence to their orders – namely, their ability to hold individuals in contempt of court. But judges will surely hesitate to hold governors, legislators, and Cabinet secretaries in contempt.
No good will come of this:
No matter the end result of liberal defiance, it will likely transform the Supreme Court’s legitimacy crisis into a full-blown constitutional crisis. Kavanaugh’s confirmation will have poisoned the foundation of the judiciary’s authority. The Supreme Court derives its power from the belief that it sits above the political fray. Brett Kavanaugh is poised to shatter that illusion.
Perhaps so, but the New York Times’ Gail Collins keeps it simple:
Trump was reportedly very angry when Kavanaugh, first responding to the allegations that he’d committed sexual assault as a young man, gave a somber interview on Fox News in which he assured the world that he had been a virgin for a very, very long time. And to be honest the virgin part was a little weird. But the president was thrilled when Kavanaugh transformed himself into a ranting boor who demanded to know whether one Democratic senator had a drinking problem and who blamed all his trouble on leftists and Clinton Democrats.
In the end, the decision facing the Senate was not whether Kavanaugh had a good judicial record but whether he was a politically paranoid jerk – and whether sexual assault had to be taken very, very seriously. The ultimate challenge was not filling a seat on the Supreme Court; it was standing up to yelling men who feel the only problem in this world is that they’re not getting what they deserve.
But there’s nothing new here:
We’ve been struggling with this all year. Al Franken resigned from the Senate after various women accused him of forced kissing and inappropriate grabbing. In another era Franken could have gotten away with an apology, but he was at the center of a historic moment, when the country had to turn its back on the old boys-will-be-boys ethos that worked when women were supposed to stay home where they’d be safe from wandering fingers.
“Boy did he fold up like a wet rag,” Trump laughed at a rally this week in Franken’s home state of Minnesota. “He was gone so fast. It was like: ‘Oh, he did something.’ ‘Oh, I resign. I quit.'”
This is exactly what the Kavanaugh nomination has come to represent. A vote for the nomination became a symbolic vote for a political ethos that thinks grabbing private parts is fun and complaining about sexual assault is a threat to young manhood.
So it comes down to this:
A vote for Brett Kavanaugh delivered a message to women who’ve suffered sexual assault: If the powerful can find a way to not take your claim seriously, they will.
So sit down and shut up, as you watch Fox News:
Fox News host Greg Gutfeld on Thursday night compared Democratic treatment of Supreme Court nominee Brett Kavanaugh, who has been accused of sexual assault, to the crucifixion of Jesus Christ.
“The Five” co-host said he was agnostic religiously but he was reminded of his 12 years of Catholic education when he watched Kavanaugh’s confirmation hearings.
“Crucifixion was an important event because it was designed to establish a wall between justice and mob rule – Christ died so that the mob wouldn’t survive,” Gutfeld said.
“What Democrats have tried to do is tear down the wall between justice and mob rule,” he continued. “They decided to crucify someone once again.”
Brett Kavanaugh is Jesus Christ? Someone should have told young Christine Blasey back in 1982 or so. But no one did. Oh well.
But that’s not what just happened. Josh Marshall saw this:
When Dr. Blasey Ford was giving her testimony last week her words were credible and shattering to the hopes of Brett Kavanaugh and his supporters. This isn’t just my take. I was getting reports from Capitol Hill. Republicans were crestfallen and grim about their prospects. Kavanaugh gained an extreme edge by going second in his testimony – something I think was frankly logical and fair. (Someone accuses and then the accused responds.) Still going second was a huge advantage. And I think that to a great degree Kavanaugh saved his own nomination with that performance.
Sure it made lots of people question his judicial temperament, his ability to be any kind of fair arbiter on the Court, even in these hyper-politicized times. It made lots of people think he had at least lied repeatedly by the common sense definition if not technically crossed the line into perjury. But it secured Republican partisans and close to the entirety of Senate GOP behind him.
And there was the substance of what he said:
There were two salient parts of Kavanaugh’s response. First, while he obviously denied Blasey Ford’s allegation, for the most part he ignored it. He checked the box of denying the claim and then rapidly pivoted to a pure message of aggression, anger and promises to fight the recognized set of political enemies that bind him to his mass and elite supporters. The palpably false claims he made were meant to be and largely were subsumed in a morality play about grievance, aggression and common enemies. To put it more succinctly, Kavanaugh went full Trump. And it worked.
And he was good at that:
I wondered then and now how much this was contrived and how much it was the real Brett Kavanaugh. It seems to me that it was a conscious decision to embody Trump. But having made that decision, it came very naturally. I don’t think he’s that good an actor. It came off as very authentic. He fully embodied the mentality of attack and the tone of aggression and calculated disrespect. I hesitate to read too much into that short span of hours. But we’ve learned in the last couple weeks that Kavanaugh has or at least had a temper, and a tendency toward physical aggression, especially when he was drunk. I don’t think it’s a stretch to think he tapped into that part of his personality for the performance.
It goes without saying that this leitmotif of aggression and attack fits neatly and naturally into the mood of challenged masculinity that Kavanaugh had to leverage to save him…
This is the heart of Trumpism. Trump may be bellicose, harsh and taunting by nature. But that mood and predatory behavior fits naturally into a political movement focused on reclamation and revenge. We see this in Trump’s often imbecilic fights with foreign leaders and his menacing, vilifying way he talks about his political opposition. Kavanaugh has his own spin on it. But it’s the same basic appeal.
And this is not new:
The politics of aggression, norm-breaking, the penchant for conspiracy theories, the increasingly explicit white nationalism – these were all present in 2014, 2010 and in a more attenuated form in 2004. What Trump did was, through some malign and impulsive intuition, fused these together into a workable politics. He took what was still the underbelly of Republican politics, which nevertheless provided it with the bulk of the GOP’s motive force, and made it the face, the brand.
Kavanaugh himself is a noteworthy bridge. A scion of the beltway political elite who received the country’s finest elite education, he made his name in the Bush White House. He is the epitome of the pre-Trump conservative establishment. Yet we can see here how seamless the transition was to full Trumpism, as it was for all the Republicans Senators who rushed to his side after his Thursday afternoon performance.
Early Thursday afternoon, Kavanaugh nomination was on life support. He went full Trump. And it worked.
That may be what really happened here – aggression and calculated disrespect – grievance, aggression and common enemies – challenged masculinity and reclamation and revenge. That’s what played out here, even if that had nothing to do with the Supreme Court. Somehow this was about something else. But now that’s what the Supreme Court will be about too. Trump has changed everything.