What Kavanaugh Means for Scotus
The Brett Kavanaugh confirmation has been a roller coaster ride in so many ways. Let me give you my own, personal, experience. When the hearings began, it looked routine. The judge acted like a judge, and the ruling party had the votes to push him through. One-party-rule is like that. While many groups objected to him on a wide range of policies, we generally don’t consider a prospect’s opinions or even record. Except in the most extreme situations, a president gets what he wants.
It’s about demeanor and temperament. We want a judge to stand above the partisan squabbles and appear to be dispassionate. We want to believe that our judges are above petty politics. If they are elected, it is usually on a “non-partisan” ballot, even though they are nominated by the parties.
Then Christine Blasey Ford was forced to come forward. While there was a lot of “sound and fury” prior to Ford, I felt that it “signified nothing.” Even this seemed inconsequential. We’re talking about an episode that was 36 years old, planted in the brain of an impressionable girl who was then just 15. While it was traumatic to her, the claim seemed too old. More importantly, we’re talking about kids. Although it was terrifying to Ford, to “Bart” and his buddy, it may have just seemed like goofing around.
Note that the only witness was Mark Judge, who bragged in published books (including–Wasted: Tales of a Gen X Drunk—you can read it free online) about being drunk to the point of blacking out during most of high school and college. Ford said the boys were drunk and laughing. If they were inebriated on top of being “boys,” it’s understandable that the same event could be seen very differently by the three people. It was still “old news,” I figured.
I didn’t lose that dismissive attitude, ironically, until the Republicans’ prosecutor, Rachel Mitchell, pointed out that there was no statute of limitations on sexual assault in Maryland, and that it could be prosecuted as a crime, even today.
My first thought was, “whose side are you on, lady??” This was clearly implying that Kavanaugh had a strong incentive to lie since if the charges were believed, he’d not only lose his Supreme Court seat, he’d likely lose his current seat, and possibly even go to jail. The prospect of a criminal conviction was shocking, but at that point, as a male, I still felt that this was all a matter of “he said, she said,” relating to an old event, involving kids, even though, in a case of “he said, she said,” I tend to believe the person with nothing to gain.
That changed a bit when I watched all of Ford’s testimony (a benefit of my being self-employed). Ford rebuffed accusations, saying no, she was not being paid; no, she was not being coached; no, it was not her idea to come forward; she had been assured that her claim would be reviewed quietly, having early asked for a private FBI investigation; yes, she had taken a lie detector test, and the circumstances of that were due to the death of her grandmother; and no, her attorneys were not being paid off by anyone—they were working pro-bono (free).
Even after seeing what Donald Trump called, “very compelling” testimony from a “very credible witness,” and Fox News called “a disaster for Republicans,” my attitude was still that this was an old complaint from someone who was then 15, which probably didn’t go beyond fondling (despite her own perception of attempted rape and possible murder).
My attitude did not change until Kavanaugh’s final testimony, which the Economist says—by itself–should disqualify him. It seemed so out-of-character, as well as being Supremely inappropriate for any judge, whom we expect to be “dispassionate.” If he had remained calm and rational, like the prosecutor who was questioning him, I would have felt that detractors had no solid case against him. He should have let the senators do the hatchet job, and acted innocent and (legally speaking) “disinterested.” The vote could be held the next day.
But he threw a tantrum: A very partisan one, claiming that was being “punished” because Democrats were still mad that Trump snuck through, thanks to the vagaries and absurdity of the Electoral College, which heavily over-represents the “empty states.” That seemed weird, since, as Sen. Kamala Harris pointed out, Neil Gorsuch sped through the confirmation process, and their backgrounds are nearly identical. If this were a grudge match, wouldn’t it have been fought last year, when the wounds were still fresh?
Yes, there was a fight before Ford, but that was because the court has been almost fairly balanced for many years. While Anthony Kennedy was usually a knee-jerk conservative vote, there were times when he flipped to agree with the liberals, sometimes incomprehensibly. It may have been that he wanted to maintain an impression of fair deliberation on the court.
Fox notes his role.
As an unapologetic “swing” vote, he was the key behind-the-scenes architect of the 2000 Bush v. Gore drama, and a 1992 opinion upholding abortion rights. He wrote majority decisions upholding rights for homosexual couples, underage killers and foreign fighters held by the U.S. military in the war on terror. . .
He generally supported his conservative colleagues on issues of crime, the death penalty, states’ rights, and civil rights. But also backed the left on abortion, homosexual rights, and school prayer.
A decade ago, there had been two conservatives who were capable of seeing the other side of an issue.
Kennedy shared the role of the “decider” with fellow westerner Sandra Day O’Connor before she retired in January 2006.
Back to the hearing, Kavanaugh claimed this was the fault of “the Clintons,” since Kavanaugh had been instrumental in the impeachment of Bill Clinton. That seems bizarre since Bill Clinton has been re-evaluated after the Ford charges against Kavanaugh. Bill is no longer seen as the “father” of the party. He’s not even allowed to campaign in the midterms.
Likewise, Hillary Clinton is “persona non grata” in the party, now. Most Democrats want her to just sit down and shut up. Despite her constant attempts to try to remain relevant, she is not. Look at the poll in the New York Daily News, in which 84% said Hillary is history.
She lost. And she still wants us to feel bad about that. No one deserves more blame for the election debacle than Hillary Rodham Clinton. The American public does not want a book from Hillary Clinton. It wants an abject apology. And it wants it for free. Now she needs to shut up and go home.
Kavanaugh’s claim appeared to be a matter of his own sense of guilt over the impeachment debacle, which actually made Bill Clinton popular again. The irony of that is that the public obviously can forgive a man for “being a man,” so Kavanaugh’s “hissy fit” actually made him less attractive (masculine) to most of the public. His claims of being unfairly treated seemed like “projection,’ as Ford might say, meaning that his own sense of partisanship was “projected” onto anyone who opposed him, in any way.
Kavanaugh’s change of attitude and demeanor seemed strange and certainly un-judgelike. Why would he put on such a show? We apparently now have the answer. Trump: The guy who is a serial abuser of women, and who has counseled all accused men to “deny, deny, deny,” regardless of guilt.
“You’ve got to deny, deny, deny, and push back on these women,” he said. “If you admit to anything and any culpability, then you’re dead. That was a big mistake you made. You didn’t come out guns blazing and just challenge them. You showed weakness. You’ve got to be strong. You’ve got to be aggressive. You’ve got to push back hard. You’ve got to deny anything that’s said about you. Never admit.”
Trump has seen it work for him. Repeatedly. In fact, in a trip to Minnesota, Trump ridiculed Sen. Al Franken for resigning over his own charges of sexual impropriety. Franken’s “crime” was not groping women, but rather, admitting to it, according to Trump.
No, Kavanaugh’s performance was not his idea. Kavanaugh was “coached” by Don McGahn, according to the Wall Street Journal.
Waiting his turn to testify last week before the Senate Judiciary Committee, Judge Brett Kavanaugh had a private word with White House counsel Don McGahn, who has been shepherding his Supreme Court nomination. Mr. McGahn cleared the holding room of staff, people familiar with the matter said. . .
Mr. McGahn told him he shouldn’t hold back: When facing the senators he should show his emotions. . .
With a riveted nation tuned in, Judge Kavanaugh offered an impassioned and raw defense of his career and character. It isn’t clear yet whether the approach worked. Some senators say they were put off by Judge Kavanaugh’s combative tone, questioning whether he has the temperament to serve on the high court. But President Trump said he was pleased by the performance.
“Performance” is accurate.
That followed an unprecedented TV appearance by a Supreme Court nominee. Also McGahn’s idea.
Putting a Supreme Court nominee on television before the confirmation vote is unprecedented in modern times. In the Fox News interview, Judge Kavanaugh leaned heavily on talking points and presented himself as a model teen—an image at odds with some classmates’ later depictions of him as a hard-partying student.
Still, White House officials, who have been monitoring focus groups measuring political fallout from the Kavanaugh nomination, believe the gambit worked. They say the TV appearance galvanized older women voters who are part of the president’s political base. . .
From the first, the White House has described the Kavanaugh nomination as a campaign with Mr. McGahn in the role of day-to-day manager and chairman. . .
The White House counsel accompanied the judge to Capitol Hill for days of courtesy calls to senators, heading a small posse of aides. When Judge Kavanaugh first testified before the Senate Judiciary Committee last month, Mr. McGahn sat behind him, monitoring the dialogue.
Focus groups. Political fallout. Gambit. Political base. Manager and chairman. Posse of aides. Sat behind him, monitoring. What was this about, again? And this was as reported by Rupert Murdoch’s Wall Street Journal. And it includes what appears to be an admission of guilt, at least to heavy drinking:
Anticipating practice questions about his sex life and drinking habits, he [Kavanaugh] said: “You’re about to learn more about me than you ever wanted to know,” according to people familiar with the matter.
What does this mean? It means that we have just confirmed a Supreme Court justice who is malleable, and susceptible to White House influence—at a time when Trump is being accused of crimes the Supreme Court may have to decide. It means that Kavanaugh is both not impartial and not temperate. But mostly, it means that he will sell his soul (and the American ideal of Checks and Balances) for his own, personal gain.
Kavanaugh will no doubt feel indebted to Trump, now, for saving him, beyond the ultimate favor of being appointed. And let’s not forget Kavanaugh’s belief that any president should have almost unlimited power, and to be free from judicial review.
Kavanaugh suggested in remarks during a roundtable discussion about executive privilege first reported on by The Associated Press that the case was possibly “wrongly decided” when it held that a president can be subject to a criminal subpoena of information by a special prosecutor. . .
In other words, a president should not have to answer to employees, including lawyers in the special counsel’s office.
And now that Kavanaugh has experienced that bullying works, what else will that mean for Scotus?
This episode is not about three teens being underaged-drunk and goofy. It’s about an adult judge acting very un-judicially and being so subject to influence by the separate branch of government. It is a dark day for the Supreme Court, which is no longer four conservatives versus four liberals. It is now, clearly, five Republicans against four Democrats, and will likely consist of seven Republicans by the time Trump is out of office. Up to now, the Supreme Court was the only branch that held a reasonable degree of public trust. Not anymore.
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