The Kavanaugh Kluster

“The ninth rule of the ethics of means and ends is that any effective means is automatically judged by the opposition as being unethical.”
-Saul Alinsky, Rules for Radicals

On paper, Republicans have enough votes in the Senate to confirm Donald Trump’s second nominee to the Supreme Court, D.C. Circuit Court Judge Brett Kavanaugh. Despite a whole host of reasons raised by liberal Democrats, Republican solidarity, and the more uncertain status of “red state” Democrats, seemed to make Kavanaugh’s confirmation a done deal. But on September 12, Senator Dianne Feinstein’s office revealed the existence of a complaint from a woman who said that Kavanaugh had tried to force himself on her at a party when they were both in high school.

This news resulted in a great deal of anger on the Senate Judiciary Committee, and even among Democrats, due to the impression that this was intended as a surprise tactic. Which was a fair point, up to the fact that Feinstein was asked to keep the account secret, and asking for an outside investigation would have required informing Republican (and Democrat) members of the committee of the matter and thus breaking that confidentiality.

The matter escalated for two reasons. On Sunday September 16, the Washington Post published the account from Professor Christine Blasey, who identified herself as the woman in question. And while Blasey says she wants to testify to the Judiciary Committee, she refuses to do so unless the FBI conducts an investigation of Kavanaugh. The existence of a named complainant had caused some “moderate” Republicans to request a delay in the confirmation hearings, but once both Glasey and Kavanaugh were asked to testify to the Committee on Monday the 24^th, some of them, like Susan Collins (R.-Maine) took the party position that Glasey was expected to appear regardless of the conditions she raised.  But then, expecting Susan Collins to buck the Republicans is like being in traffic behind the 80 year old man with his turn signal on: Maybe he’s gonna hurry up and actually make that turn, just not in the next ten miles.

Trump’s party, the same party that (correctly) decided that a president lying about a consensual affair deserved to be impeached are now at pains to excuse what may or may not be a consensual encounter. Judiciary Committee member Chuck Grassley (R.-Iowa) said on Hugh Hewitt’s show, “I’d hate to have somebody ask me what I did 35 years ago.” It turns out that in 2015, Judge Kavanaugh had joked to law students,  “What happens at Georgetown Prep stays at Georgetown Prep.” Apparently Georgetown Prep is like Las Vegas, only with more sex and booze.

According to Blasey’s own account, the only other person involved in the assault, who inadvertently put a stop to it, was Mark Judge, who has described himself in those days as a blackout drinker, so he might not be in position to confirm one way or another, and in any case is not a great character witness. Conservative columnist Rod Dreher points out, “I was in college from 1985-89, and the general cultural sensibility was far more like “Animal House” than it is like today. High school and college kids who got loaded did it mostly to get rid of our inhibitions and have sex. You’d better believe that my memories of drinking culture back then has strongly affected the way I am raising my kids.”

Which only confirms that of all the mistakes I made in my youth, deciding to live sober was not one of them. Cause if I am supposed to believe that getting drunk specifically in order to kill inhibitions was that common then… then that really explains a LOT of what’s going on now, doesn’t it?

Republicans are of course up against a wall. Not only do they have the midterms, the Supreme Court begins its next term of sessions on the traditional first Monday in October. Dragging this out another week would mean the Court has only eight Justices. Of course, Mitch McConnell and the Senate Republicans were fine with the Court having only eight Justices after Antonin Scalia died cause Barack Obama had cooties or something, so… fuck ’em.

The liberal position in this case seems to be the opposite of mine. The liberals are fixated on protecting Roe v. Wade and know that this appointee, like any Republican appointee, would want to strike down that case, and so because they disagree with that particular, they want to cast about for reasons why he would be a bad nominee in general. Whereas in examining Kavanaugh’s record, he is not simply a conservative jurist, which any Republican would be expected to nominate. Specifically, the Republicans have generally been averse to providing any information on Kavanaugh to Democrats on the Senate Judiciary Committee, to the point of timing a “data dump” the day before committee hearings so that such information could not be processed though it was technically provided. Then in hearings, Kavanaugh’s history as a member of the Bush Administration was reviewed, along with his confirmation hearings for the DC court, and he contradicted himself at several points. While legal experts do not think this necessarily amounts to perjury,  Kavanaugh is cementing a reputation of evasiveness. Then there’s the statements he has made. Kavanaugh in hearing refused to confirm to Senator Dianne Feinstein (D.-California) that U.S. v. Nixon was rightly decided and that he would follow that precedent in a future case (on the odd chance that a president might put himself in a situation where he could be under subpoena). He did this by saying: “So, that’s a hypothetical question about what would be an elaboration or a difference from US v. Nixon’s precise holding. And I think, going with the Justice Ginsburg principle, which is really not the Justice Ginsburg alone principle. It’s everyone’s principle on the current Supreme Court, and as a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question.” (This despite the fact that when Ruth Bader Ginsburg was questioned on the issue of abortion during her confirmation hearing, she stated,  ‘It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling ‘) And in regard to abortion itself, very recently Judge Kavanaugh was central to a three-judge panel decision in a case brought by a 17-year-old “Jane Doe” unauthorized immigrant, preventing her from receiving an abortion until such decision was reversed on emergency appeal. This is important because not only does precedent on Roe establish that there is a right to abortion even for female minors but also for non-citizens in this country. Kavanaugh’s decision not only attempted to override the right to abortion but to establish a precedent in which rights that had previously been deemed to apply to non-citizens can be taken by the government.

So while liberals start from a particular concern (abortion rights) and then look for reasons to justify their antipathy to Kavanaugh on general grounds, the real issue – when judicial conservative antipathy to abortion is a given – is that there is already enough general evidence to conclude that Kavanaugh is an ethically unfit nominee and would thus be likely to make an individual decision that is unethical. Not necessarily including manhandling a girl 35 years ago, but perhaps including unequivocally lying about it now.

(As one of Rod Dreher’s commenters put it, ‘I’m afraid that once [Kavanaugh] issued a categorical denial the only important ethical question left is “did he do it?” If not, than all of the above is not applicable. If so, the issue is should we confirm a 53 year old liar, not a 17 year old drunk.’)

Donald Trump, recognizing his lack of conservative bona fides, took the step of getting an approved list of judicial nominees (including Neil Gorsuch). Brett Kavanaugh did not make the first two drafts of that list.  Since 2016, Kavanaugh had given a set of speeches intended to signal allegiance to Heritage Foundation legal positions. In October 2016, Kavanaugh wrote an opinion for the D.C. Circuit court that the President had the capacity to fire the director of the Consumer Financial Protection Bureau, a decision that was reversed in that court in January 2018. The “Jane Doe” abortion case was in October 2017. And when Kavanaugh was nominated to the Court in July of 2018, he praised Trump, saying, somewhat improbably, “I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”  Brett Kavanaugh clearly subscribes to the philosophy, “reality is what helps you pass the exam.”

Of course no matter how embarrassing this whole thing gets for Republicans, they’re going to bull through all objections, because that’s been their philosophy since at least the Merrick Garland nomination, and well before Donald Trump was elected. It’s that much more their philosophy since Trump has taught them that they can get away with public disgrace as long as they get just enough votes in just the right places. So despite all the rancor, Kavanaugh will be confirmed to the Court, because all the Good Christians, covered in their own drool at the prospect of killing Roe v. Wade, will let Trump get what he wants, oblivious to the point that Trump only wants this guy because he’s the only prospect who’s signaled that he will go Trump’s way in the event of a legal confrontation with the government – a possibility that is far stronger than a “hypothetical”.

But I could be wrong. It could be that Trump can be made to back down, as he did in his defenses of Vladimir Putin after sucking up to him in Helsinki. Or perhaps Brett Kavanaugh might have less stomach for sleaze than his boss, and withdraw himself. That would require the Administration to start over again. This would please lots of conservatives who thought that Trump made the wrong choice to begin with, like Catholic columnist Matthew Walther in The Week: “Why not the apparent runner-up, Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals? It is difficult to imagine her being implicated in anything like the present scandal. She was in every imaginable sense a better candidate in the first place. I for one do not relish the prospect of the fifth vote to uphold Roe v. Wade being cast by a would-be rapist appointed by our twice-divorced serial philanderer-in-chief. My sense of humor just isn’t that bleak.”

Well, mine is. Because, “conservatives”, this is what you get when you tether your hopes and dreams and what pass for your ideas to a cult of personality led by a fruitfly-brain who can’t think of anything above himself.

Which reminds me-

Y’all sick of winning yet?