A few weeks ago in these virtual pages, I wrote that ‘In years to come, no one is going to talk about ‘kavanaughing’ a candidate.’
Boy did I get that wrong. The word deployed may not be the mouthful ‘kavanaughed.’ Maybe it will, à la Lindsey Graham, be pleonastically expressed: ‘the most despicable thing I have seen in my time in politics’ about fits the case.
I am writing on Friday morning. The Senate Judiciary Committee is scheduled to vote this afternoon. Punditry is not prophecy, but I am nevertheless going to predict that Brett Kavanaugh gets an up vote from the committee and that Chuck Grassley will have learned his lesson and bring the matter to a floor vote tomorrow, Saturday, as he said he would.
With a couple of Democratic senators, including West Virginia’s Joe Manchin, suggesting that they will vote for the Judge, I also predict that he will be joining his new colleagues Gorsuch, Roberts, Alito, et al. as the newest Associate Justice of the Supreme Court when the term opens next week.
But that’s a matter for the future. For now, let’s consider what just happened. An ostentatiously qualified candidate for the Supreme Court was subjected to a humiliating public show trial in which wild, totally unsubstantiated allegations of predatory sexual abuse and irresponsible, alcohol-fueled belligerence were paraded in screaming headlines and the supposedly hallowed chambers of the Senate floor.
Much was made of the fact that Brett Kavanaugh drank beer when he was a senior in high school and in college. In one particularly bizarre episode, his high school year book entry was dissected line by line by a Democratic Senatorial inquisitor.
Republican senator Lindsey Graham gave the performance of his career, slamming the Democratic manoeuvres as an effort to destroy a brilliant judge and good and decent man with a blizzard of disgusting lies. Why would they do this? It wasn’t, in Coleridge’s phrase, ‘motiveless malignancy.’ It was, one word, power. Graham crisply unpacked the strategy. Destroy Brett Kavanaugh with unfounded accusations of sexual abuse, delay the vote, hold open the seat until 2020 when (so hope the Democrats), they retake the presidency and remake the Supreme Court for a generation.
The Fabian tactic was key. Dianne Feinstein had the trembling allegation from Christine Blasey Ford that Brett Kavanaugh had accosted her at a party 36 (or was it 35?) years ago since July. Yesterday, several Democratic senators portentously (not to say disingenuously) called upon Judge Kavanaugh to ask the President to call for an FBI investigation of the alleged incident. But of course, Kavanaugh has already been through six — six! — thorough FBI investigations. Never has there been a hint of a whisper of bad behaviour. Moreover, had the Dems been interested in the truth, rather than 1. destroying Judge Kavanaugh and 2. delaying the process, they would have brought up the Dr Ford allegation during the hearing rather than on the eve of the scheduled vote.
Several people, GOP senators and commentators alike, have invoked the McCarthy show trials of the 1950s as an illuminating precedent for the destructive exhibition of snarling animus on view from the Democratic side of the chamber these last couple of weeks.
In fact, in one key respect the behaviour of the Democratic senators and their febrile, power-at-any cost supporters is worse than what old Joe McCarthy did. McCarthy destroyed many careers with his wild-eyed accusations of secret Communists occupying every nook and cranny of the government. In the aftermath of the Red Scare, Leftists held up the McCarthy hearings as a sterling instance of baseless anti-Communist hysteria. But we now know, from the Venona transcripts and other sources, that the State Department and other agencies were in fact harbouring Communists who were loyal to Stalin. The witch hunt conducted against Brett Kavanaugh, by contrast, was a fantastical, utterly baseless fabrication. motivated solely by power-hungry malevolence.
As Lindsey Graham noted, Republicans have never done to Democratic nominees for the Supreme Court what the Democrats have, since the borking of Robert Bork, routinely done to Republicans. ‘I would never do to them [Elena Kagan, for example, or Sonia Sotomayor] what you have done to this guy,’ Graham said. ‘This is the most unethical sham since I’ve been in politics. And if you really want to know the truth, you sure as hell wouldn’t have done what you did to this guy.’ To get a vivid, if stomach-churning, sense of exactly what Brett Kavanaugh and his family have just been through, watch his heart-wrenching opening statement form yesterday.
Our process for evaluating Supreme Court nominees — at least, for evaluating Republican nominees — is broken. It has become a search-and-destroy mission, not an honest evaluation. ‘Oh, that’s just politics, that’s just the process,’ you say. No it isn’t. It’s the perversion of politics and undermining of the process.
In another column, I suggested that the Senate could better fulfill its Constitutional duty providing advice and consent to the President on Supreme Court nominations by going back to an earlier procedure and taking the circus out of the evaluation process. There is no need for public hearings. They are a modern innovation. Candidates should should meet in private with the Judiciary Committee and talk privately with senators who wish to speak with then.
Any chance of that happening? I do not know. Many observers have noted that the reason that the evaluation of Supreme Court nominees, at least GOP nominees, are often so fraught is that the Court has become so powerful, so intrusive in our everyday life. That may be true. But if so, it is partly because Congress has largely abdicated its responsibility to legislate, leaving many aspects of that function that to the Courts, partly because, since the 1960s, the Democrats have deliberately employed the Court to supersede the legislative function of Congress, and, therefore, the will of the people, by using it to legislate from the bench.
Judge Kavanaugh, I am confident, will be confirmed. But what if I am wrong? Kimberly Strassel, writing in The Wall Street Journal yesterday, got it exactly right. ‘A “no” vote now,’ she noted, ‘equals public approval of every underhanded tactic deployed by the left in recent weeks.’
‘It’s a green light to send coat hangers and rape threats to Sen. Susan Collins and her staff. It is a sanction to the mob that drove Sen. Ted Cruz and his wife out of a restaurant. It is an endorsement of Sen. Dianne Feinstein, who kept the charge secret for weeks until she could use it to ambush the nominee with last-minute, unverified claims. It’s approval of the release of confidential committee material (hello, Spartacus), the overthrow of regular Senate order, and Twitter rule. It’s authorisation for a now thoroughly unprofessional press corps to continue crafting stories that rest on anonymous accusers and that twist innuendo into gang rapes. A vote against Brett Kavanaugh is a vote for Michael Avenatti.’
‘A vote against Brett Kavanaugh is a vote for Michael Avenatti.’ I don’t think this whole sorry performance could be summed up more accurately.