Fear and Loathing in the Senate Judiciary

KLOBUCHAR: OK. Drinking is one thing, but the concern is about truthfulness, and in your written testimony, you said sometimes you had too many drinks. Was there ever a time when you drank so much that you couldn’t remember what happened, or part of what happened the night before?

KAVANAUGH: No, I — no. I remember what happened, and I think you’ve probably had beers, Senator, and — and so I…

KLOBUCHAR: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened.

KAVANAUGH: It’s — you’re asking about, you know, blackout. I don’t know. Have you?

KLOBUCHAR: Could you answer the question, Judge? I just — so you — that’s not happened. Is that your answer?

KAVANAUGH: Yeah, and I’m curious if you have.

— Senate Judiciary Committee Hearing on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court, Day 5, September 27, 2018

This is what happens when Democrats act like Republicans and Republicans act like frat boys.

We Democrats nominated a woman for the presidency in 2016 at least partly because she was next in line. Republicans gave us an overgrown brat of a rich kid who elbowed his way to the front of the line. The Republican somehow got an Electoral College win in spite of losing the popular vote by nearly three million votes.

President Donald Trump nominated Neil Gorsuch only eleven days after taking office in 2017 and got him confirmed by the Senate on April 7th. Gorsuch replaced Antonin Scalia, who died more than eleven months before Mr. Trump took office. The Republican-controlled Senate had refused to hold hearings for Barack Obama’s nominee but confirmed Donald Trump’s nominee in about five weeks.

To get Gorsuch confirmed, Senate Republicans had to invoke the “nuclear option,” a parliamentary maneuver by which a simple majority could effectively end debate and force a vote. So much for the filibuster. Of course, Democrats had paved the way for this eventuality, having themselves invoked the nuclear option to speed the confirmation of lower level Obama nominees in 2013.

They say what goes around comes around, so who could really complain when Republicans used the same tactics as Democrats to get a nominee through the Senate?

All of which brings us to Brett Kavanaugh. Mr. Kavanaugh was nominated by President Trump to replace Anthony Kennedy, who announced his retirement earlier this year. Kennedy, a Reagan nominee, was the swing vote on many 5-4 Supreme Court decisions. Trump nominated Kavanaugh to replace a swing vote with a hard core, right wing ideologue.

Kavanaugh was immediately embraced by his Republican brethren on the Senate Judiciary Committee, and the good committeemen and the president did all they could to hustle Kavanaugh through confirmation.

One small problem: a woman in California contacted her congressional representative, sent a message to the Washington Post tip line, and eventually got a letter to the ranking member of the Judiciary Committee, claiming that Kavanaugh had sexually assaulted her when they were both high school students in the early 1980’s.  You can read her account here: Ford Opening Statement.

The past few weeks have been a tilt-a-whirl of accusations, denials, counter-accusations and threats. The carnival ride culminated with Dr. Ford (she’s a PhD college professor) and Judge Kavanaugh (he’s a US Circuit Judge for the US Court of Appeals in the DC Circuit) appearing before the Senate Judiciary this past Thursday.

On Friday, the committee voted 11-10 along straight party lines to forward Kavanaugh’s nomination to the full Senate. Before the vote, Senator Jeff Flake, an Arizona Republican not seeking reelection (and therefore thought to be moveable against Trump’s nominee) announced that he would support Kavanaugh’s confirmation. Flake argued that the presumption of innocence until proven guilty ought to extend to nominees undergoing Senate confirmation hearings, not just defendants in criminal cases.

After the vote, a few protesters cornered Senator Flake on an elevator and vented their frustration that once again a woman had risked all to come forward and name her assailant only to see it make no difference. Well, apparently THAT encounter actually did move Flake. He joined with Senate Democrats to insist on a reopened FBI investigation before any floor vote on confirmation. Only the White House can order the FBI, and they have (It’s not over yet.)

The Senate and White House are looking for political cover. We don’t really know what the FBI is looking for. The Deputy Attorney General, Rod Rosenstein, is ever-threatened with firing or impeachment by the president or House Republicans, respectively. The Attorney General, Jeff Sessions, is frequently targeted by Trump’s tweets and generally expected to get canned after November midterms. Senate Majority Leader Mitch McConnell insisted that Republicans would “plow right through” and get Kavanaugh on the Court (he said this to applause from religious conservatives at the Value Voters Summit on September 21st). Senator Lindsey Graham threatened Democrats “If this is the new norm, you better watch out for your nominees.”

All of this seems to me to be missing the point.

If the Senate really wanted to get at the truth, why didn’t they call Kavanaugh’s friend Mark Judge, who was allegedly present and actively involved in the assault, and put him under oath? If the president wanted to get at the truth, why didn’t he order an investigation weeks ago?

The truth is — and I hate to say this — that we are unlikely ever to know the truth about what happened in 1982. Do I believe Christine Blasey Ford when she says that Brett Kavanaugh and Mark Judge sexually assaulted her at a house party in the early 80’s? Yes. Do I believe that Judge Kavanaugh might not remember the incident, even if it occurred exactly as Professor Ford alleges? Quite possibly.

As chilling as it is to consider that a nominee to the United States Supreme Court might have committed drunken sexual assault as a teenager, what’s at least as troubling is the way Kavanaugh has reacted to the accusations against him: with denial, counter accusations, and barely contained rage. Partisan, self-entitled rage. Democrats, according to Kavanaugh, had engaged in “search and destroy”; his family and name had been “totally and permanently destroyed.” Kavanaugh was evasive. He obfuscated, misled or outright lied (hint: “boofing” is not passing gas and “devil’s triangle” is not a drinking game).

The quotation at the beginning of this post (video here) is an exchange between Senator Amy Klobuchar (D-Minnesota) and Judge Kavanaugh, in which the judge dodges a question about whether he’s ever blacked out while drinking and throws the question back at a US Senator who was exercising her constitutional duty to evaluate a presidential nominee. Did Kavanaugh talk to any of the Republican men this way? What would happen in Kavanaugh’s courtroom if anyone addressed him in such a manner?

As a Supreme Court justice, would Kavanaugh be fair, unbiased, dispassionate and restrained? Or would he be carrying a personal grudge to the bench?

Alas, we are back at the central question: Is this man a suitable nominee for a lifetime appointment to the highest court in the land?

The answer to that, in my mind, is a resounding no, and it doesn’t take another FBI investigation to reach that conclusion.

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