Tuesday, September 25, 2018

How the Kavanaugh Situation Reflects on Pence's Question to Himself: "Why Am I Such a Loser?"

by Neil H. Buchanan

Remember the articles from back in June and July, immediately after Justice Anthony Kennedy's surprise retirement, with headlines like: "Brett Kavanaugh, Consensus Top Choice, Awaits Inevitable Nomination?"  You know, the news stories that stated as obvious fact that the only surprise about Kavanaugh was that he was not already on the Court, so superior was he to all of the other possibilities, and that Neil Gorsuch was lucky to have been tapped ahead of Kavanaugh?

You remember those news reports, right?  Of course not.  Kavanaugh was merely one of many possibilities, and while insiders were hardly surprised by his nomination, he was by no means the obvious superstar pick whose inevitability was impossible to deny.  He was just another carefully groomed movement conservative who would reliably move the Court even further to the right, and his extra oomph was that he was the most likely among them to give Donald Trump a pass when the Court inevitably must weigh in on presidential immunity from all things Mueller-related.

How is it, then, that the now-severely-tainted Kavanaugh is being so fiercely defended by Trump and nearly all Republicans?  Setting aside my argument that Kavanaugh's extra-extreme views would not ex ante have made him the top choice even for most Senate Republicans (all of whom are quite extreme in their views, but perhaps a notch or two less so than Kavanaugh), why would they embrace him so completely now?

In answering this question, it will be possible to ponder another riddle: Why is Vice President Mike Pence such a political orphan, when he should reasonably have believed that he would be the Republicans' knight in shining armor?

Last week, Professor Dorf and I argued in separate columns that it is insane to imagine that the Republicans will not fill Kennedy's seat, even in the still-unlikely event that they lose their Senate majority in the mid-term elections in six weeks.  So why would they continue to embrace Kavanaugh so tightly, even though doing so now seems likely to increase their chances of losing badly in November?

One obvious answer is that they are being defiant, stubbornly refusing to "let the liberals win" and rallying around their guy, no matter who that particular guy is in the battle du jour.  This is a clear contrast to the Democrats, who -- though often derided for being politically anti-savvy -- have actually taken a very cold-blooded attitude toward their own damaged goods.

The most prominent example of this is surely former Senator Al Franken, who quickly lost support among his own caucus last year in the face of #metoo charges that were, while important, substantively the least bad of those of anyone whose career has been derailed by mistreatment of women.  I wrote then, and I still believe, that it was best that he go away.  The Democrats had good replacements, and although he has considerable talents, so do other people.

But Republicans clearly do not think that way.  Is it simple contrariness that is motivating them?  Or maybe it is Trump's infamous "deny, deny, deny" approach, which is supposedly based on the Roy Cohn-inspired theory that any backward move is a sign of weakness (making Trump's reversal last week regarding his order to release classified material in the Mueller probe a huge loss for him, rather than a way to change the subject).  Maybe they are just better at channeling Cohn than Trump is.

In any case, it is difficult to see what the Republicans would lose by dumping Kavanaugh and moving on to Nominee 2.  One can even hear the Orwellian chants from Republicans: We have never been fans of Kavanaugh.  We have always been devoted to Nominee 2!

According to an article in The New York Times, the Republicans had hoped to use the Kavanaugh confirmation as a "cudgel" in the midterms.  They apparently hoped that they would put pressure on red-state Democratic senators who are up for reelection.  Now, according to that article, doing so runs the serious risk of "repercussions," which is a gentle way of phrasing it.  The bottom line is that Kavanaugh is now toxic to a large number of voters, including specifically those voters outside of their base whom Republicans still hope to be able to reach.

Even if the original plan was to use Kavanaugh as a political asset, however, why continue to act as if he is helpful when he is now most definitely not?  Apparently, the answer is that the Republicans are now concerned that tossing Kavanaugh aside will depress their base voters, reducing turnout in the midterms.  Notably, the most extreme right-wing evangelical leaders are upset that there is any delay on Kavanaugh.

Again, this makes no sense at all as a substantive matter.  What Republican base voters -- including the largest subset of that base, right-wing evangelicals -- want from a Supreme Court justice can reliably be entrusted to any of the heavily vetted nominees on the Federalist Society's list.  Although Kavanaugh plays the roles of good Catholic boy and family man, there is nothing about his background that would make him a natural darling of fundamentalist Protestants.

What is especially odd about this explanation is that it means that the Republicans' base is not already sufficiently enraged by the possibility of Democrats trying to impeach Trump, which is the big motivator that Republicans have been pushing for months.  How easily depressed are these people?  Do they need to be reassured on every issue every day, lest they curl up in a ball and surrender?  That does not sound likely.

It is certainly true that Republicans are not running on any actual issues this year.  Remember tax cuts?  Republican candidates seem not to.  And although one might think that "values voters" would agree with high school students (and others) who worry that defending Kavanaugh will tell adolescent boys that it is open season on adolescent girls (even more than it always has been), we have long since passed the point where one could still believe that the sex-obsessed Christian right is anything but a front organization for the defense of male privilege.

All of which means that the best explanation available for the Republicans' unshaking grip on Kavanaugh is that they are running their campaign entirely on the theory that the only thing they have going for them (other than voter suppression and gerrymandering, of course) is a maximally stoked fire-breathing base.

Although I have argued that Democrats need not worry about galvanizing Trump's supporters, who appear at all times to be fully galvanized, their leaders apparently think that those supporters are delicate types who cannot stand even the slightest disappointment.  The rush to ram Kavanaugh through the confirmation process was not so much a way to put pressure on Democrats but a way to keep fainthearted base voters in the fold.  I continue to be skeptical about all of that, but it is the most plausible interpretation of how Republican leaders are reacting.

Finally, then, where does Pence fit into this story?  From the beginning of Trump's presidency, I have been stumped by the Republicans fierce loyalty to Trump, even when he is so obviously a millstone around their collective neck.  (Seriously, the most favorable Senate map in Republicans' lifetimes, with Democrats having to defend 25 of the 35 seats up this year, might result in Republicans losing their majority?)  Through everything from "fine people on both sides" to the Putin bromance/treason defiance of Republicans' Cold War orthodoxy, Republicans have stayed with Trump.

With Kavanaugh, no one knows who would be the replacement nominee.  They do know that he (or she) would be just as extreme as Kavanaugh, and they most certainly know that Roe (and Griswold and everything else sex-related) would go the way that the Republicans' religious base would want, but they do not know exactly who that not-Kavanaugh would be.  Kavanaugh might not be one of them, but at least he is a now-known quantity who has not (to their minds) done anything wrong even if he did once (or maybe more than once) try to rape a girl.

But Trump?  For the Christian right and other essential Republican constituencies, not only was he never one of them, but everything that he has done that makes them cheer is merely part of his political strategy to pander to them (as opposed to any core belief on his part).  Yes, he has shown repeatedly that he is a white supremacist and a misogynist, but so are plenty of people who could replace him.

Enter Pence.  He is not only every bit the extremist that Trump has been, but he has a longer track record to back it up.  Most importantly, if Trump were to go down, there is no doubt about who would replace him.  That, indeed, is a frequent lament among Democrats: What, we're going to put everything we have into making Mike Pence the next President?

So here is Mike Pence, with a staid choirboy image so extreme that he is the butt of constant jokes about his discomfort being around women, and with a long commitment to the issues that right-wing evangelical voters care about.  As a matter of style, he is adept at sounding exasperated when asked about any unpleasant issue at all.  ("Oh, come on, Wolf.  Of course we repudiate neo-Nazis.  That's a ridiculous question.")  That is a valuable political skill.

Most importantly, if Pence has any chance at all of galvanizing non-Republican voters against him, it will be on the issues, not by committing Trumpian outrages.  Pence and the Republicans in the Senate would have delivered  Gorsuch, a Kavanaugh equivalent, the same run of ultra-conservative judges on the lower courts (probably without the occasional embarrassments), hyper-regressive tax cuts, environmental degradation, labor bashing, attacks on women's rights, and on and on.

All of that would have made Pence an unpopular president, but no more unpopular than Trump.  But Republicans did not look at these circumstances and say, "Hey, Trump has given us a million opportunities to look like statesmen while kicking him out.  And we've got Pence right here to do everything that we all want to do, with none of the drama."

Yet Pence sits there, barely noticed, while Republicans reveal that they think that their voters are more loyal to Trump than they are to Republicans -- or could ever be to Pence.  They might be right about that, but how sad is that?

A party that managed to turn John Kerry's war heroism into an electoral liability and transformed Hillary Clinton into a national security threat (and radical feminist) apparently does not think its voters could be roused to vote for Mike Pence over Elizabeth Warren, Bernie Sanders, or Kamala Harris.  For Pence, that has to sting.


Michael C. Dorf said...

Jettisoning Trump in favor of Pence would likely have two policy implications. First, it would likely end the dalliance with Russia, which is probably not very salient to most Republican voters. Second, it would revert administration trade policy to more traditional free-tradism, which would be unpopular among a subset of distinctly Trumpian voters. But so far, that's all gravy for congressional Republicans, so the puzzle persists, right?

Not once we take account of misogyny. Pence is a moral traditionalist, which can mean imposing all sorts of restrictions on women's liberty, but Trump is a playboy. Insofar as Kavanaugh (as a young man even if no longer) was also a playboy, he appeals to the very male very white base of voters who support Trump BECAUSE rather than IN SPITE of his grab-em-by-the-pussy swagger. In this view, the allegations against Kavanaugh endear him to the Trump base, even if--indeed ESPECIALLY if--the allegations are true. Anyway, that's my working hypothesis.

Jonny Scrum-half said...

This is a great post, and really captures for me the confusion of what the heck is going on with a large percentage of our population. There's really no rational thought process behind much of anything with the Trump base.

Joe said...

Trump is the sort of mob figure (as to a tyrant who appeals to the mob) that traditional republican thought feared. Pence comes off as an unpleasant person who appeals at most to evangelicals (and even some of them might not like him). He does come off as a credible public figure (low standards). A sort of John Kasich option that won't much appeal to the base or have crossover appeal.

This might be a case where the "president" role matters. If we had a prime minister system, such a figure like Pence might appeal more to Republicans. Since a PM also would need certain leadership qualities, however, it might still be an issue.

Salemicus said...

Isn't it much simpler? Republicans are sincere when they say they don't find these allegations credible. If you genuinely believed that your nominee was being attacked by meritless, trumped-up accusations, then you would be even more determined to seat them, as to do otherwise would be to reward the perfidy and bad faith of your political opponents.

To explain Republican actions in this way, does not require you to hold any particular belief on the merits of the accusations.

Shag from Brookline said...

But these allegations have not been formally heard under oath by the Committee and questioned by the Committee members or outside female litigator experienced in sexual abuse cases. Perhaps Republicans on the Committee find Judge K's Fox interview credible. But that interview, which was quite unusual, has had challenging responses. At the hearing scheduled for Thursday, Judge K may be questioned on that interview, under oath. Whether the accusations have merits should require a full, fair hearing, both of the accusers, Judge K and relevant witnesses, including the admission of calendars as evidence and other relevant documents.

Is Salem suggesting this is a witch hunt? This is not virgin territory for the Senate Judiciary Committee which some of us old enough watched some 27 years ago with the Clarence Thomas Committee confirmation hearings back long before the #MeToo movement.

Salemicus said...

"Is Salem suggesting this is a witch hunt?"

Are you able to read?

Shag from Brookline said...


Was your "much simpler?" opening intended to suggest that the details in the post by Neil are insignificant or perhaps excessive such that you question Neil's argument, or that you disagree with the way Neil presented his argument? Based upon your closing sentence:

"To explain Republican actions in this way, does not require you to hold any particular belief on the merits of the accusations."

perhaps you were engaging in sarcasm.? I can read your words but not your intent or goal with your comment. Why in the world should Neil accept your "much simpler" way rather than what he chose to do?

Or were you just being a "Smartypants"? You could have directly criticized the arguments in Neil's post, if you wished.

Salemicus said...

So the answer is no, fair enough. No shame in being illiterate.

Shag from Brookline said...

And no shame in your being ill and oh so literate? I did not say "NO." Here's what I said in my 8:49 PM (yesterday) comment:

"I can read your words but not your intent or goal with your comment."

You could have in your earlier comment asked me if I were able to understand what you meant in the context of Neil's post with your comment. Your intent or goal with your comment remains unclear to me. Was it sarcasm?

Asher said...

"[T]hey most certainly know that Roe (and Griswold and everything else sex-related) would go the way that the Republicans' religious base would want."

That's a little delusional. Griswold and Lawrence are going nowhere no matter how many Republican appointees join the Court. Would a Court with a second Trump appointee have decided Griswold and Lawrence as they were decided? I'd say somewhere between unclear to no, but conservatives don't care about overruling those cases much, or care to engender the blowback that would generate, and people like Roberts and Kavanaugh probably find at least Griswold defensible under Glucksberg, or for the reasons given in White's concurring opinion, both of which were prominently featured in Kavanaugh's confirmation testimony. Roe could be going somewhere, but it is not "most certainly" going anywhere. For one thing, Roberts's vote on that subject is as unpredictable as Kennedy's or O'Connor's in 1991, at a time which, if I recall correctly, Kennedy had never voted to strike down any abortion regulation and O'Connor had voted to strike down one, a parental-consent law that lacked a judicial bypass. Kennedy cared much more deeply about abortion, in a negative way, than either Roberts or, as far as one can tell, Kavanaugh do. I believe that every dissent Kennedy ever wrote ended with "with respect and usually began with "this respectful dissent," except for his dissents in Hill v. Colorado and Stenberg, abortion-speech cases and abortion cases, respectively, where anti-abortion forces lost. Kennedy has never been publicly angrier than in reading his bench statement of his Hill dissent (the text of which is somewhat turgid, but his reading of which anyone even slightly interested in Kennedy's thought and personality should listen to--it's only seven minutes long and thoroughly riveting). Yet he voted in Casey as he did.


Shag from Brookline said...

Might SCOTUS unpredictability be a continuing contributor to the political polarization of the elective branches even with the addition of another purported originalist keeping in mind Trump's campaign statement about the kind of Justices he would appoint?