Courting Disaster

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Even before the allegations of sexual misconduct surfaced, even before his prissy, petulant meltdown on live TV, even before he repeatedly perjured himself in response to fairly innocuous questions about juvenile sexual terms and the extent of his youthful drinking, Brett Kavanaugh was unfit to be appointed to the United States Supreme Court. The fact that he will shortly be confirmed to that post anyway says a great deal about the values of both parties at the present moment.

In a number of ways, Kavanaugh might look the part of a Supreme Court justice. He graduated from Yale Law, one of two, maybe three permissible schools for a justice to attend; he clerked for a Supreme Court justice (Anthony Kennedy, whose seat he is attempting to fill); and he did time in the US Circuit Court of Appeals in DC, widely regarded as the second-most powerful court in America. Yet compared to any of his peers with similar attainments, Kavanaugh does not stand out: both Merrick Garland and Neil Gorsuch, to name only the two most recent nominations, had more distinguished careers on the DC Circuit, and there are plenty of other appellate judges on other circuits who are both smarter and younger. So why was he appointed, and why did the GOP stand by him long after it became clear that his nomination was in danger?

The answer to both questions is that, as a party hack, Kavanaugh is without peer. His introduction to public life was as Ken Starr’s sidekick, chasing after feverish conspiracies like the supposed murder of Vince Foster, and writing much of the Starr Report urging impeachment of Bill Clinton as well as aggressive and explicit questioning of the president in the actual trial. (Note that Bill Clinton, like every other American president going back quite a ways, should have been impeached and imprisoned for war crimes, at the very least. But that’s another matter entirely.)

Why was Kavanaugh appointed, and why did the GOP stand by him long after it became clear that his nomination was in danger?

Kavanaugh then joined George W. Bush’s legal team in time to argue against the ballot recount in Florida; eventually he would be made White House Staff Secretary, responsible for all documents going to and returning from President Bush’s desk, as well as for coordinating policy makers and speechwriters. In this capacity, he would have had immense latitude to shape the legal doctrines that made the Bush presidency such a disaster: the prosecution of the wars in Afghanistan and Iraq, the internment of prisoners without due process in Guantanamo Bay and their torture in Abu Ghraib and a variety of other black sites around the world, the invocation of “national security” to justify warrantless surveillance and a vast expansion of domestic spying operations, the use of signing statements to exempt the president and the Homeland Security apparatus from actually being bound by any laws, et very much cetera.

It is difficult to know exactly how influential he was in his three years on the job because the Republicans controlling the Senate Judiciary Committee refused to request or review more than a tiny fraction of the relevant records; it seems unavoidable though that he was one of the central figures in the development and prosecution of the War on Terror, not to mention such culture-war efforts as those to ban gay marriage and restrict abortion. His service to the party earned him many friends, as well as his appointment to the DC appellate circuit, where he would continue his work to expand the power of the imperial presidency.

However, it took three years for Kavanaugh to get confirmed, because Democrats worried that someone so near the heart of the Bush administration might not aspire to impartiality when it came to questions of executive power or national security. And he set about proving them right, in opinions supporting the government’s vast warrantless surveillance program, defending the use of military tribunals and the removal of what few legal protections were left for Gitmo detainees, and giving the FBI and military free rein to torture even American citizens swept up in terror operations.

As a party hack, Kavanaugh is without peer.

Worse, Kavanaugh established himself quickly as perhaps the most hardline circuit judge with respect to criminal justice. In a speech last year to the American Enterprise Institute, Kavanaugh said he admired William H. Rehnquist’s attempts to eliminate Fourth Amendment protections, in particular the exclusionary rule preventing unlawfully obtained evidence from being admitted in trial, and the established Miranda rights requiring police to inform arrestees of rights including representation. From the bench, Kavanaugh has made his own contributions to this cause, among them a denial that attaching a GPS to a suspect’s vehicle constituted a search, a refusal to consider the lack of probable cause as any barrier to a random search, and a rejection of any limit on the qualified immunity granted to police. Kavanaugh’s preferred world, like Rehnquist’s (and unlike Kennedy’s), is one in which the police would be even more empowered than they are today, where the painfully slow pushback of the last few years against police and prosecutor misconduct, as well as against the wider United States prison gulag system, would effectively be wiped out.

There’s plenty more, but I won’t labor the analysis here; you can read his record as well as I can. The point to be gathered is Kavanaugh’s devotion to Republican Party policy, and in particular to the validation of his work on the greatest blunder in contemporary geopolitical history, the US War on Terror. And that rehabilitation campaign is one in which the Democrats are fully complicit—not just in the reliable bipartisan support for treasury-wrecking outlays on defense, but also in more personally galling ways such as the media airbrushing of George W. Bush, making him a kindly grandfather figure who pals around with Michelle Obama, rather than a war criminal whose conscience obviously isn’t burdened by the hundreds of thousands of people who died and the millions more who continue to suffer because of his decisions.

This is a big part of why the Republicans are so desperate to have Kavanaugh rather than any other nominee: his confirmation will mark another stage in the normalization of our nightmare of endless war. But it’s also why the institutional Democrats, this time around, refused to go after him on policy issues: their future lobbying prospects depend on cozy relations with weapons manufacturers and the thinktanks authoring white papers in support of ever more, and ever more expensive, conflict.

Kavanaugh’s preferred world is one in which the police would be even more empowered than they are today.

(It’s likely also why they refused to inquire further into any sources of funding underlying Kavanaugh; it’d be hard to find a figure in Washington without some source of dark-money funds underwriting them. The mystery of how Kavanaugh had hundreds of thousands of dollars of debt mysteriously wiped out, or how he afforded his country club fees or bought a house beyond his means, is probably attributable to wealthy family members writing him checks. But there’s much larger-scale questions to be asked about the dark money pouring into groups like the Judicial Crisis Network, which banked $28.5 million from one undisclosed donor alone and backed Kavanaugh, like Gorsuch before him, to the hilt. Obviously Kavanaugh wasn’t going to betray any knowledge of the identity of his benefactors, but it would have been good to get him on the record, under oath, denying it.)

So the Dems were left with his boorish high school and college behavior, which isn’t disqualifying; the accusations of assault, which would be, but which would be near impossible to demonstrate to the point of changing anyone’s mind; and his lies under oath, which should rule him out entirely but clearly won’t. Not many people, certainly not those with congressional voting privileges, were really concerned about him growing up an entitled brat or being generally a dick in his early years; many of them are dicks themselves, and certainly all of them are familiar with the awful DC-suburb prep schools that incubate Kavanaugh’s ilk. If he owned to that, he could even spin it into a narrative that in Catholic circles dates back to Augustine at least: the dissolute youth made good. But he insisted on presenting himself as some kind of goody-two-shoes, too busy studying and playing wholesome team sports to do much partying, and too uncool to be invited to too many parties even if he wasn’t hitting the books. His bizarre insistence on declaring himself a longtime virgin—as if that had any bearing on the commission of sexual assault!—typified the overcorrection; plenty of other people regret who they were in high school, it’s relatable, but he refused to relate it.

The institutional Democrats refused to go after him on policy issues: their future lobbying prospects depend on cozy relations with weapons manufacturers and the support of ever more, and ever more expensive, conflict.

The odder outbursts of his testimony—the ones that lost him the support of former Justice John Paul Stevens, Lawfare blogger Benjamin Wittes, and a few thousand members of the America Bar Association, among others—seemed attached to questions about his drinking, especially his nasty retort to Amy Klobuchar when she asked about him about blacking out. It’s a relevant question: if you drink to blackout point, you might do something and truly believe you didn’t, because you would have no memory of that action. But Kavanaugh, who by the accounts of many had the reputation of a heavy drinker even at a heavy-drinking prep school and college, thought it better to turn around that question, a move recognizable to anyone who’s ever confronted a friend or family member on similar grounds.

Kavanaugh’s performance was so bad—and maybe worse, weird—that it suddenly looked like the 51-seat Republican majority might crack. In play now were Susan Collins (R-ME), who had previously agreed to support any candidate from a list provided by the Federalist Society; Lisa Murkowski (R-AK), whose support usually could be secured by federal monies heading to her state; and above all Jeff Flake (R-AZ), who exemplified the so-called “never Trump” Republican by loudly declaiming against the president’s bearing before voting for almost every one of his policies. Several of the conservative Democrats who crossed party lines for Gorsuch after the Republicans nuked the filibuster rule for the consideration of Supreme Court justices—Heidi Heitkamp (D-ND) and Joe Donnelly (D-IN)—would declare themselves as “No” votes, leaving only Joe Manchin (D-WV) to keep it from the rarity of a purely party-line vote for a Supreme Court nominee.

Flake, for the merest of moments touched by something approaching a conscience (or perhaps just aware of how footage of him callously shutting an elevator door on sexual-assault survivors might play in the 2024 presidential primaries), called for an FBI investigation into the claims. What followed was a brilliant, extremely cynical tactical move by the GOP: after Flake in his original statement called for a week-long span, the White House placed additional restrictions on the investigation (even as the president tweeted lies about there being no restrictions).

What followed may be perhaps most cursory, slapdash FBI investigation ever—not the most unethical, Lord knows, but usually the feds have some sort of standards even when they set out to destroy someone’s life. After three days, the FBI announced they were wrapping up; they had interviewed only 11 people, including neither of the principals—Christine Blasey Ford being set to one side as seemingly irrelevant, and Kavanaugh himself being placed firmly off limits, as were any questions relating to his consumption of alcohol now or decades back. I’m pretty sure I interview more people, and ask harder hitting questions, on an average afternoon at a Libertarian National Convention.

His performance was so bad—and maybe worse, weird—that it suddenly looked like the 51-seat Republican majority might crack.

The resulting report will not be available for any of us to read, not for decades, at least unless some future president declassifies it. In a process demonstrating the weird, cultish protocols that accrue in a cursed place like Congress, any senator wishing to read the report had to descend to the Capitol basement and view it in a room on complete lockdown, no cellphones or recording devices allowed, not even so much as a notebook. The process is a holdover from Obama’s early days, and is yet another example of how that regime’s lack of transparency enables the unapologetic opacity of this one, such that everyone entering the room was enjoined against discussing the contents of the report in any but the most general sense. But since it was merely a theatrical gesture to begin with, it was never going to change any minds. Certainly Flake felt like he now had the cover to do what he had wanted to do all along: vote yet again to support the agenda and nominee of the president he has said is “ruining our country” through “tribalism.” Once Collins was aboard—the supposedly pro-choice, “pro-woman” senator basking in the spotlight, taking almost an hour to justify supporting a candidate who will snap at the chance to restrict abortion in any way that presents itself—the scam was complete.

Throughout all this, at precisely the time (well after it, actually) when he should have been shutting up, Kavanaugh wrote a jaw-droppingly self-serving op-ed in the Wall Street Journal in which he apologized vaguely for “a few things I should not have said.” He didn’t say exactly what those things were, presumably among them the idea that this whole ordeal was “revenge on behalf of the Clintons” or the threatening statement that in US politics “what goes around comes around”—i.e., the precise sort of partisan motivation that the institution of the Supreme Court was designed to avoid. He tried to present these statements as “very emotional” moments—despite the fact that they were part of a prepared statement he had drilled on for days. As genres of apologies go, his fell in the “I’m sorry you made me do that, I won’t do it again (unless I have to)” camp familiar to many unhappy homes across the nation.  But any apology, however vaporous, was beside the point: the column was ultimately a presentation of Brett Kavanaugh’s personal mythology, the way he clearly sees himself and wishes to be seen.

In this statement, you can see why the Republicans are bound to Kavanaugh, why they can’t just jettison him and tap someone like Amy Coney Barrett, who would comparatively breeze through hearings and rule almost exactly the same way on the bench. Kavanaugh, more fully than any other contemporary figure, represents all sides of the Republican Party as presently constituted. He’s the Fox News side that spouts whatever conspiracy theories align with his personal grievances, and he’s the Wall Street Journal side who clings to the shreds of intellectual respectability by publishing in the house organ of the neoconservative thinktank Right. But the thing is, those sides have never really been at odds; they might dislike how the other goes about its business, but that business is one and the same: the expansion of unaccountable executive power, the tacit encouragement for government agents to abuse that power, the removal of any consequences when that power is inevitably abused, and the personal enrichment of everyone making possible all of the above.

As genres of apologies go, his fell in the “I’m sorry you made me do that, I won’t do it again (unless I have to)” camp familiar to many unhappy homes across the nation.

The Democrats share much of this central goal, and what they don’t share they’re too ineffective to actually counter; Chuck Schumer will surely go down as one of the most laughably weak opposition leaders in the congressional annals. Some Dems seem content to vote a tepid “No” and just let Kavanaugh be confirmed, possibly out of a belief it will help their election prospects in the midterms. But the Supreme Court is a lifetime appointment, and we can expect Kavanaugh, at 53, to be bolstering the powerful and blocking reform for two, maybe three decades to come, far beyond any temporary and likely illusory electoral advantage.

Expect to see a lot of handwringing about process in the days and weeks to come, much of it from the Republican side. Ignore the bad-faith invocations of “sexual McCarthyism,” especially from those who have had to pay a lot of money to make accounts of their own abusive behavior disappear. Know that the process they followed was to take a bad candidate, hide most of the documentation of his past, bumble through a crisis that would have sunk almost any previous nominee, put him through (or allow him to put himself through) a series of increasingly embarrassing media moments—any of which could have demonstrated his unfitness for a job requiring gravity and personal reserve—stage the most transparently flimsy of investigations, then ram his nomination home regardless.

This is nothing more than a demonstration of pure power politics, a statement of intent from a group of people who intend to get theirs without any recourse to process, or norms, or any of the other words that politicians use when they’re trying to disguise what they’re actually doing. The Republicans apparently don’t think they have to hide behind that anymore. They are comfortable in showing that this—cruel, cynical, conspiracy-minded operators, united behind a party hack who will do immense and lasting harm to the cause of liberty—is who they are. And, as the saying goes, when people show you who they are, believe them.



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Comments

Luther Jett

Thank you Mr. Ferguson for a well-written and comprehensive summary of the plethora of reasons Brett Kavanaugh should not have been confirmed as well as the reasons that ultimately, he was. Analyses like yours are why I still bother to read "Liberty" and why I once considered myself a Libertarian.

The responses of your critics, sadly predictable as they are, demonstrate why I have become disaffected and alienated from a movement I used to think held great hope for humankind.

Geezer

    ... I once considered myself a Libertarian.

The past tense is appropriate. I would also apply it to Mr. Ferguson.

Visitor

"...even before his prissy, petulant meltdown on live TV..."

Prissy? Meltdown? I suspect that the author has never been lynched by millions, with U.S. Senators leading the charge, on the basis of zero evidence. But he must know better than what he's saying here. The article is dishonest.

Andrew Ferguson

Visitor seems to suffer from a lack of historical education all too common in American schooling. As it falls to me to correct this shortcoming, I offer a brief study in contrast:

  • A lynching was when an individual, usually a poor black man, is pulled out of a society in which he is legally relegated to second-class status, accused of a horrible crime he almost certainly did not commit (or sometimes of no crime at all beyond simply existing in the vicinity of white people), convicted by a mob after a farcically biased investigation, murdered with all the hellish ferocity that mob can muster, and left to rot wherever his body fell, perhaps in the end buried in an unmarked grave.
  • The Kavanaugh hearings was when an individual, an upper-middle-class white man, was pulled out of a society in which his family's wealth and status afforded him first-class treatment and any number of passes for his boorish behavior, accused of a horrible crime he almost certainly has no way of knowing whether he committed thanks to years of belligerent blackout drinking, cleared after a farcically biased investigation, promoted to a lifetime job where he can wield power over hundreds of millions of Americans (not to mention billions more humans worldwide), and left to preside there until his body rots from the inside, in the end buried with great pomp and ceremony.

With that cleared up, we can turn to the charge of dishonesty. I call them like I see them, and what I see in Kavanaugh is a man temperamentally incapable of the equanimity required of anyone wielding a fraction of the power he now possesses, and in looking back over his testimony (as well as looking over his early performance in that office) my only regret is that I was too mild in my criticism. You, Visitor, are of course welcome to disagree, but in that case my sympathies are with those who find themselves subject to whatever authority you feel entitled to wield.

FrankInFL

With dozens of good reasons for opposing Kavanaugh -- on civil rights issues he's a mobile catastrophe -- why did the Dems hang their hat -- ALL their hats, it seems -- on a bimbo eruption?

Answer: to criticize him for his views on warrantless surveillance (for instance), they would have to show how they opposed NDAA, and they can't. To criticize him for his hawkishness, they would have to show how they have steadfastly opposed our many undeclared wars, and they can't. Shall I go on?

In short, Democrats in Congress largely support all the things they ought to have been gigging him for.

They volunteered for this. Stop complaining. They got what their actions clearly say they wanted.

Andrew Ferguson

I'm not sure if your comments of "Shall I go on?" or "Stop complaining" are meant for the Democrats or for me. If the latter, then I'm very confused as from the first paragraph of my piece I am in total agreement and it is, in fact, the argument I develop throughout: the Dems are complicit in all the crimes of our country. In 2009 they could have made large-scale changes to how America conducts its business, both domestically and abroad, and they refused to do so for the simple, stupid reason that they did not think they would lose that grip ever again. Mitch McConnell is many things, but he is not stupid, and he is not about to waste the only two years he is guaranteed to have this level of power.

I'll choose to read your use of "bimbo eruption" not primarily as the deeply callous comment it first appears (though it's not helped by your last phrase, which sounds like a defense of why any particular woman got what she had coming), but rather as an invocation of Clinton fixer Betsey Wright, whose words should have completely undermined any notion that Bill or Hillary had any real interest in women's rights beyond the power and wealth they personally gleaned from them.

For far, far too long, the Dems have been in thrall to the Clintons, and it has kneecapped their ability to put forward any sort of coherent counter-platform to whatever atrocities the Republicans are suggesting at any moment. Obama's victory in the 2008 primaries was the moment they should have ditched Bill & Hill forever (especially after the very thinly-veiled racist campaign run on Hillary's behalf) but it wasn't to be. They've finally now shuffled off down the trail--though still racking up absurd speaking fees--but through events like the Kavanaugh nomination, we'll be feeling the dead hand of their influence for a long time to come.

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