The nomination and confirmation of Judge Brett Kavanaugh as the fifth radical conservative justice on the Supreme Court of the United States is now concluded. Our highest court is now firmly in the hands of the oligarchy. Yes, that’s what it is, because the new majority is even more dedicated to corporate supremacy and unregulated markets than they are to reversing minority rights or women’s rights or religious diversity. That was the goal of the Republican Party and their corporate donors, and they have achieved it.
In September (2018) I watched many hours of the Senate Judiciary Committee’s four days of hearings leading to this selection. My conclusion, which will not surprise any of my friends, was that Judge Kavanaugh is unqualified for the position he has now achieved. I felt that way after the first three days of hearings, even before he was accused of a variety of sexual offenses. The fact is, after his performances I would feel that way even if he reversed himself to support the rights of women and minorities and workers, which was my primary argument against him before the hearings. His personal temperament and sense of entitlement, as displayed repeatedly before the Senate committee, is clearly incompatible with the job.
I can’t pretend to be neutral in the Supreme Court wars. I also can’t pretend, like some pundits have been doing recently, that our nations’s highest court has only recently been politicized. But Brett Kavanaugh was a strongly partisan choice dedicated to cementing the conservative and pro-business majority on the Supreme Court. For that reason alone most Democrats, concerned about women’s rights and minority rights and health care and oligarchic control of our government, among other issues, would have opposed Kavanaugh. It is not true, as President Trump claimed last month, that if he had nominated George Washington the Democratic Party would have opposed it. In fact, if he had chosen a moderate candidate his own party would have been the ones to reject it. The balance of power on the Supreme Court is important to both sides of the aisle.
But the final delay of the Kavanaugh nomination process, and the fourth day of hearings at the end of September, should not have been a partisan event, as it involved multiple credible allegations of sexual misconduct. It became partisan only because one party was determined to push through the President’s choice no matter what kinds of serious questions were raised, and to do it before the November 2018 Congressional elections. Even the last-minute FBI investigation was restricted to avoid testimony that would embarrass the partisan pro-Kavanaugh arguments. The choice of a seriously flawed candidate like Kavanaugh was unfortunate, but the GOP and President Trump did their best, in Majority Leader Mitch McConnell’s words, to “plow right through” with the confirmation.
Most of the serious problems surfaced in the initial three day confirmation hearings. Predictably, the GOP senators on the Judiciary Committee spent their time largely praising Kavanugh and Democratic senators almost universally searched for flaws. What resulted was the usual pattern. But it wasn’t just that Kavanaugh followed the usual strategy of refusing to answer any questions about issues that may come before the Court, or any general “hypotheticals”, which he did. That was expected. It was applied to questions about abortion, affirmative action, voting rights, and whether a president has to respond to a subpoena. In past hearings he has stated that some of those issues are settled precedent that a judge must follow, but that answer is meaningless to a Supreme Court justice, who can vote to overturn any such precedent. Kavanaugh refused to say whether he personally agreed with such precedents. He also avoided answering direct questions, and may even have lied, about his involvement in Bush-administration policies such as torture and the theft of Senate emails.
But Kavenaugh’s obfuscation and avoidance reached a high point during the second Senate hearing, the one following the testimony by Dr. Christine Ford. Try the following exchanges about entries that Kavenaugh wrote in his high school yearbook:
Senator Patrick Leahy: “In your yearbook you talked about drinking and sexual exploits, did you not?”
Kavanaugh: Senator, let me – let me take a step back and explain high school. I was number one in the class … I busted my butt in academics. I always tried to do the best I could. … I did my service project at the school, which involved going to the soup kitchen downtown – let me finish – and going to tutor intellectually disabled kids at the Rockville Library. With the church – and, yes, we got together with our friends.”
And with Senator Sheldon Whitehouse, more of the same also referring to his yearbook:
Senator Whitehouse: “So the vomiting that you reference in the ‘Ralph Club’ reference is related to consumption of alcohol?”
Kavanaugh: I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got into Yale College. When I got into Yale College, got into Yale Law School. I’ve worked my tail off.”
When Whitehouse rephrased his question Kavanaugh interrupted him and claimed he had already answered it. Then:
Whitehouse: “Did it relate to alcohol? You haven’t answered that.”
Kavenaugh: “I like beer. Do you like beer, senator, or not? What do you like to drink?”
This is an astonishing demonstration of avoidance, a display that was blatant, defiant, arrogant, and yet clumsy. There were may such incidents throughout the four days of hearings. In other questioning several senators asked Kavanaugh if he would support an FBI investigation to resolve the dispute and, possibly, to clear his name. His repeated reply was that he would go along with whatever the committee wanted to do, knowing full well that the GOP majority on the committee had rejected any such investigation. The majority was still arrayed against it near the end when Senator Jeff Flake forced them to accept a brief FBI inquiry by withholding his vote.
All of this came after Kavanaugh’s rambling and emotional introductory statement, in which he alternated between yelling angrily and crying. The Guardian compared his rant unfavorably against the calm demeanor displayed by Dr. Ford in her earlier presentation to the same committee, and against the restrained behavior expected of a judge:
“The contrast with the US Supreme Court nominee, Brett Kavanaugh, could not have been greater. He was hot and bothered from the outset, fiddling with his shirt cuffs, sniffing incessantly, anxiously unscrewing small bottles of water, spraying accusations across the political landscape. He lapsed into his old role as a political hack, accusing a side range of actors for his suffering: the media, the Democrats on the Judiciary Committee, a vast left-wing conspiracy, the Clintons. He predicted political Armageddon as sex was weaponized to destroy reputations, notably his own, as he was just on the verge of success.”
Kavanaugh’s comments also were in sharp contrast to his assertions, in his earlier confirmation hearing, that a judge must be “a neutral and impartial arbiter”, that he himself does not “decide cases based on personal or policy preferences”, and that “the Supreme Court must never, never be viewed as a partisan institution.” Prior to the confirmation vote more than 2,400 law professors noted that Kavanaugh had “displayed a lack of judicial temperament that would be disqualifying for any court.” And more than twelve ethics complaints arising from Kavanaugh’s testimony have been judged as substantive enough to warrant review by the federal justices of the tenth circuit court.
The Republican response to all of this was standardized into brief talking points, so that virtually all their leaders began repeating two contradictory interpretations. First, they said that Dr. Ford’s presentation was compelling and that she had obviously experienced a traumatic event. Then they argued that “Kavanaugh wasn’t there”, that the complaints about him were “a hit job” and a conspiracy by the Democrats, one that will destroy all similar processes in the future. In other words, they believed Dr. Ford, but then they didn’t. Or they simply didn’t care. As for the many other accusers who spoke of other incidents of harassment, they were completely ignored. What the Republican strategy really means is only this: They were dedicated to approving their president’s choice no matter what evidence was presented to them. And that, in the end, is what they did.