On the eve of the probable confirmation of Judge Kavanaugh to SCOTUS, the Republicans are likely embarking on a far riskier enterprise than most of them may realize. After all, these are people who were given a short-term goal, which was to confirm the President’s choice, Judge Kavanaugh, to the land’s highest court.
But, in tune with the much of the music the GOP has played since the election of 2016, from tax reform to healthcare reform, this has transformed from a drama of relative simplicity to, quite literally, a circus exhibiting the fundamental weakness of the Party that claims to represent America. To suggest the tune may be discordant would be far too generous: the musicians flail at their instruments with manic grins on their faces, blood on their fingertips, all while trying to dance to illicit calls of a square-dance master who puts his own dreams first.
Let’s assume the confirmation takes place, as planned, on the morrow. This will place the newly anointed Associate Justice beyond the practical reach of the GOP; oh, certainly a Justice could theoretically be clawed back by the Senate through the standard process of impeachment, but in our reality, this seems unlikely. When he’s seated, he’ll be there for at least two years, and probably far longer, as I doubt the Democrats will achieve the required super-majority in the Senate anytime soon.
And this means the reputation of the GOP, their very brand, will be subject to the legal opinions advocated by the new Associate Justice. He will engage in questioning those lawyers advocating for their clients, he will write opinions, he may be asked to deliver majority opinions, he may even declaim dissident opinions from the bench.
And that means that every case of a cultural nature, such as something to do with LGBTQ rights, or unions vs right to work, or other decisions of a non-technical nature, is an opportunity for him to tarnish that GOP reputation.
Let’s stop for a minute and consider Kavanaugh’s appearance at the end of this confirmation process. Here’s a useful description:
Ultimately, opposition to Kavanaugh’s confirmation comes down to Christine Blasey Ford’s entirely credible testimony, a blatantly slipshod investigation seemingly designed to allow him to hop over holes in his testimony, deep concern over the message that his elevation would send to victims of sex crimes (we won’t seriously investigate your claims; instead we’ll mock you), and the partisan cloud that will descend over the Supreme Court if Kavanaugh joins the bench. Collectively, these should keep him off the court, in our view. …
Kavanaugh is different from any other Supreme Court nominee in recent history. Judge Robert H. Bork was more extreme (or more honest) in his judicial philosophy, but no one accused him of giving less-than-forthright testimony; there was no hint of private impropriety. Harriet Miers was intellectually ill-prepared but was never accused of personal misconduct. No other nominee has accused one political party of conducting a campaign of vengeance against him or her.
Indeed, no judge has gotten to the highest court with the baggage that Kavanaugh totes. His shredded credibility and overt partisanship should have counseled for a substitute pick weeks ago; his unprecedented partisanship will surely sow disrespect for our judiciary for decades. No op-ed is going to clean up that mess.
This is useful not only because it’s accurate, so far as I can tell, but because it’s not from a Democratic or leftist or progressive or even centrist source. This is authored by Jennifer Rubin, conservative columnist and writer of WaPo’s Right Turn blog, one of the many former Republicans who’ve left or been run out of the party over the years, but who remembers when Republicans were respectable conservatives. I value her words far more than those of her more liberal colleagues, because her agenda is clear and her criticism far more likely to be honest.
But she really clarifies where I’m going with this contrast with the previous appointment, from the same piece:
Had Trump been able to clone Gorsuch and send him up to fill the seat of retired justice Anthony M. Kennedy, we’d be exactly where we were back then — united Republicans and a few red-state Democrats combining to confirm him (54 to 45). Gorsuch’s patience and self-control were evident during his confirmation hearing. No one feared that Gorsuch would bring disrepute to the court, nor that he would cast doubt on the legitimacy of 5-to-4 opinions. He has been more dismissive of precedent than one might have thought, but he’s a perfect example of the adage that elections have consequences.
Kavanaugh is not joining SCOTUS by walking on a red carpet long runner, scattered with flower petals and surrounded by clapping admirers, up the steps and in the golden door, as did Gorsuch. Even though I will always call Gorsuch the Illegitimate Justice, I do not denigrate him, at least not yet. But Kavanaugh?
He’s slinking in by the back door. Don’t knock over the garbage can on the way in, bud.
I say this with no malice, but simply to amplify for the reader the great risk the GOP appears to be taking on. Let me add to that a bit more, just to make those nerve endings tingle. Judge Kavanaugh, depending on how much you believe what you read from various analysts, may have lied to the Senate about a number of matters.
To me, this does not matter so much. After all, the GOP is willing to give him the benefit of the doubt, rather than hold him to a higher standard, even if I think SCOTUS merits that standard. Throw this claim in a GOP Senator’s face and he may rage that this is untrue, but, if you believe the analysis of even moderate Republicans, it’s a simple fact.
That’s not the damage the GOP need fear.
What should have them perspiring is the revelation that, having lied about these matters, Kavanaugh may have lied about other things. What might they be? Hard to say. He claims to be a mainstream conservative, and that settled law is settled law. Perhaps, however, once he’s seated he’ll argue that the Establishment Clause is really an illusion and the Presidency has a Christianist requirement on it.
Think about that. It’s not out of scope, is it? Hell, the Center For Inquiry, a great advocate for the Establishment Clause, sent me mail warning that Kavanaugh has a history of leaning too far towards religious groups in his rulings. And there’s a host of other unknown issues on which he might have deceived our Senators, Democratic and Republican.
If he is out of the mainstream and reveals it, then the Republicans stand tarred and feathered, because Kavanaugh is their inevitable standard-bearer, and yet he’s out of their control.
Man intent on jacking up his base.
All honest observers already know that Kavanaugh is a revealed partisan hack, shown in all his Republican red glory in his frantic accusations of liberal conspiracies just over a week ago. His attempt at an apology and retraction in the last couple of days, published in the Wall Street Journal (here, requires subscription), is obviated by the fact that the incriminating statement was a prepared script from which he read, not an angry outburst. Carefully planned, it actually coordinates with, of all things, his initial acceptance speech. Remember that ridiculous little toady speech, breathlessly thanking President Trump for his deeply researched choice of himself?
Yes, if you didn’t find that repulsively far too partisan for a true candidate for SCOTUS, you should see it again. It’s a wonder for the ages that Kavanaugh thinks he understands what judicial independence really means.
But this lets me transition to the real danger for the Republicans, because Kavanaugh manifests the ways of the crazed partisan, or even extremist-advocate of views putrid in the view of the American mainstream, then there will be a focus on the ways of the Republicans.
That is, how did President Trump, the man who would “get the best” for us, and has failed mightily, pick Kavanaugh? Did he task his best legal advisors to sift through the membership of the Federal judiciary and pick the best legal mind, regardless of political leaning, for the job? Did they sweat gallons of smelly liquid in their job?
No. By all accounts, Trump picked Kavanaugh’s name off a list of names prepared by The Federalist Society, a group based on a specific way of interpreting law and Constitution, after asking a couple of people what they thought of Kavanaugh.
That, in a nutshell, embodies the Republican way. We have power, now we’ll putz about and pick someone who looks good on camera. To hell with experts, because they don’t tell us what we want to hear.
And it’s a mighty inferior way to run government. The Republicans had better hope Kavanaugh keeps his nose clean and his views mainstream, because if he doesn’t, that’ll be another highly effective weapon for the Democrats to use on a party already reeling from the incompetency of President Trump. And they cannot control Kavanaugh. By putting him in a lifetime appointment, there’s no more leash, no more stick & carrot to use.
And that should scare them shitless.
Have the liberals gone too far? It’s been a game of very dangerous chicken, and I think the doxxing incident might have crossed a line. But it was necessary, given the concerns arising about his suitability for SCOTUS, to investigate thoroughly, and when the GOP Senators in charge chose not to fulfill their responsibilities, the Democrats were drawn into looking more and more extreme.
Their task will be to communicate that they were fulfilling responsibilities, and the Republicans were not. That’s where they need to go with this.
But the Republicans? They’re nearly in a lose-lose situation. This is just the start of the Kavanaugh game, not the end. What if every single case that comes before the Court were to result in a recusal request to Kavanaugh? How long before we’d get another partisan howl?
More popcorn. More strategizing. Because that’s what happens when the GOP weaponizes SCOTUS.
