Members Only | October 4, 2018 | Reading Time: 6 minutes
The GOP Is About to Poison SCOTUS
The Democrats, meanwhile, must prepare to heal it.
The FBI last night wrapped up its background investigation of Supreme Court nominee Brett Kavanaugh. The bureau remitted its report to the White House early today. From there, it went to the Senate. Each party is taking turns reading it.
Chuck Grassley, chair of the Senate Judiciary Committee, was the first to make a statement. No surprise, he said there’s nothing here we don’t already know. The implication was that Mitch McConnell’s plan to hold a vote tomorrow is a go.
The Democrats, of course, are going to demur. They are already suggesting that previous background checks on Kavanaugh contain troubling findings. What those are, I don’t know, because Grassley would have to make them public.
The investigation is a rush-job that can’t, and was not intended to, please everyone. The president placed major constraints on investigators. They didn’t interview Christine Blasey Ford, for instance. The probe was designed to put a veneer of respectability to the confirmation process so the Republicans look like they did due diligence. Fact is, the people investigating Kavanaugh are kinda sorta his people.
Christopher Wray, the FBI director, is a fellow member of the Federalist Society. Rod Rosenstein, second in command at the Justice Department, is a Ken Starr alum, as Kavanaugh is. My point is there’s a lot of incentive to overlook this and sidestep that.
Call it a sham if you wish.
But don’t call it hopeless.
I’m getting the impression that liberals are throwing up their hands, bewailing unfairness, and lamenting the loss of the court. I get that. Go head. Feel those feelings. Let them burn. But don’t let them consume you. There is a way forward.
First, Kavanaugh’s confirmation might not happen. The real deciders are not McConnell and Grassley. They are Jeff Flake, Susan Collins and Lisa Murkowski. (Yes, there are red-state Democrats to consider, but they will likely follow suit.)
All three Republicans are under enormous pressure from both sides—for and against the nominee. They are feeling heat from two major perspectives, from liberals decrying allegations of sexual assault and conservatives (and liberals) saying that confirming him will compromise the integrity of the US Supreme Court.
Listen to what they say. Every word counts. That will indicate what they’ll do. If they say one slightly negative thing about the investigation, expect McConnell to cave–and ask the president to order more questioning. If they say anything positive, that might signal that they’re going to vote yes on Kavanaugh. Like this:
But even if they do confirm Kavanaugh, that’s not the end.
Remember: A justice can’t attack Democratic conspirators for sabotaging his reputation and career (“Forever,” he said) while maintaining an image of jurisprudential neutrality. There’s no going back after that partisan rampage.
There is in fact a growing nonpartisan consensus that he’s not only unfit. He’s a liability for a court whose legitimacy has been increasingly in doubt since 2010. This means the Democrats are on solid ground for any attempt to reform the court to restore its credibility. The question isn’t whether they should. The question is how.
This week’s investigation is how. Or least the beginning of how. The Democrats have an incentive right now to make as much noise as possible about a sham investigation so that they can return to it after they win back power (at the very least by taking the House). Jerry Nadler, a New York Democrat, is likely to become the next chairman of the House Judiciary Committee. On Sunday, he told ABC’s “This Week” that:
“If [Brett Kavanaugh] is on the Supreme Court and the Senate hasn’t investigated, then the House will have to. We would have to investigate any credible allegations, certainly of perjury and other things that haven’t been properly looked into before.”
Sheldon Whitehouse has been making similar suggestions. He told CNN last month: “As soon as Democrats get gavels, we’re going to want to get to the bottom of this.”
This is the way forward.
It’s a long game with the goal of taking control of the government in 2020 to pass legislation that would reform the court: with terms limits or whatever.
It’s not without risk. In reopening an investigation into a sitting justice, the Democrats risk backlash. Worse, they would hasten the erosion of trust. But as long as they can persuade the voting public that they are trying to save the court, and as long as their investigation shows evidence of actual wrongdoing, they should be OK.
All of this may sound cynical. I think it’s the reality the Democrats must face.
So far, they are. It’s up to you to make sure they continue.
The real Kavanaugh effect
So much ado about the so-called Kavanaugh effect. In brief, it’s fear among Democrats that the fight over the nominee is going to drive out Republicans next month, limiting their possible gains, especially in the Senate. Let me give it to you straight.
If the Republicans were to hold a vote after the midterms, all of the above might be true. The Republican base, which cares about the courts more than the Democratic base does, would in that scenario have an incentive to come out in force.
After he’s confirmed? Not so much. As Matt Glassman said:
Then why all the talk about Kavanaugh effect on the elections? One, pundits like to talk about it. Two, Democrats fear it. Three, it served the GOP’s goal of putting maximum pressure on holdouts in the party, specifically Jeff Flake, Susan Collins and Lisa Murkowski. Four, in hyping the effect, the Republicans can credibly say the Democrats shouldn’t push back so hard, because, you know, the midterms are coming.
There will be a Kavanaugh effect, I believe, but it won’t be what everyone is saying it is. Confirming him won’t drive out GOP voters. They will be satiated. But Kavanaugh’s threat to liberal legal precedents will drive out Democrats. They won’t forget, because his confirmation is part of a larger context in which voters are already mobilized.
If the liberal backlash is a fire, the Republicans will pour gas on it.
Sadism is the point
I wrote yesterday about the devolution of conservatism into sadism, plain and simple. The ideology isn’t about limited government anymore. It’s not about preserving tradition. It’s not even about greed. It’s about taking pleasure in others’ pain.
Adam Serwer said it better, though. About same time Editorial Board was released Wednesday, The Atlantic published his latest illumination of the minds of Donald Trump supporters. In “The Cruelty Is the Point,” he said:
Trump’s only true skill is the con; his only fundamental belief is that the United States is the birthright of straight, white, Christian men, and his only real, authentic pleasure is in cruelty. It is that cruelty, and the delight it brings them, that binds his most ardent supporters to him, in shared scorn for those they hate and fear: immigrants, black voters, feminists, and treasonous white men who empathize with any of those who would steal their birthright. The president’s ability to execute that cruelty through word and deed makes them euphoric. It makes them feel good, it makes them feel proud, it makes them feel happy, it makes them feel united. And as long as he makes them feel that way, they will let him get away with anything, no matter what it costs them.
A word about tribalism
Not all tribes are created equal. If they were, there would be something to the claim that everyone needs to return to at least a modicum of decorum and civility. Bosh.
Some tribes want power. Others want justice. One of these is better than the other. Some pundits have incentive to make you believe all tribes are no good, very bad.
Again, total bosh.
Jesus had a tribe. Not the Jewish one. Last year, I wrote:
According to author and historian Antony Black, the Kingdom of Heaven reduced “the moral status of clan and of tribe, as well as nation.” It “detribalized monotheism” by obviating the need for distinctions: between Jew and non-Jew, husband and wife, rich and poor, healthy and unhealthy.
“Differences of race, status, and gender are all insignificant,” Black writes before quoting, in A World History of Ancient Political Thought, a verse from Galatians:
“There is no such thing as a Jew or Greek, no such thing as slave or free, no such thing as male or female, for you are all one in Christ Jesus.”
That’s my “tribe.” Yours?
There is one thing the Democrats can do that they have not done. They haven’t even talk about doing it. But they should start talking. Like, right now. Today’s the day.
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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.