The Case For Kavanaugh Was Already a Bad Joke

by Neil H. Buchanan

At the beginning of my column last Thursday, I included a "Note to readers" that read as follows:
I had planned to write the fourth of my "How Bad Will Things Become?" columns today, discussing various areas of the law that likely-future-Justice Brett Kavanaugh and his right-wing colleagues might mangle for partisan purposes.  That column will, unless intervening events require further delay, be published next Tuesday, September 18.
Today is September 18.  Reasonable minds can differ, but I think the thunderbolt over the weekend, in which a woman went public with a credible accusation of sexual assault against Brett Kavanaugh, counts as such an "intervening event."

I truly do think that the content of what Kavanaugh, or any other nominee that the Federalist Society, Trump, and the Republicans (in that order) might put forward, is what ultimately matters.  And, as I have already discussed in Parts One, Two, and Three of that series of columns, there is plenty to worry about.  Because the rest of what I plan to write regarding the possible damage caused by a new Supreme Court hyper-extreme conservative majority is not Kavanaugh-specific, however, I will use today's column to talk about the status of Kavanaugh's nomination.

I am not predicting that Kavanaugh's nomination will die, of course, but I do think that it is important to assess where things stood before the big news broke over the weekend.  The state of play only a handful of days ago was that Republicans -- included the now-exposed imaginary moderate Republicans like Senator Susan Collins -- were untroubled by the process and substance of Kavanaugh's possible elevation to the Court.  It is worth remembering why their views were so dangerous.

Importantly, with the sexual assault allegation against Kavanaugh now dominating the news, there are inevitable comparisons to Clarence Thomas's nomination, which is now remembered entirely for sexual harassment allegations against Thomas and the Senate Judiciary Committee's shabby treatment of Anita Hill (due in depressingly large part to Joe Biden's mishandling of the mess).  I will offer a parallel to Thomas, but that comparison will not have anything to do with different types of mistreatment of women.

The most important Thomas comparison, I think, is that his nomination also should have been doomed long before a woman came forward with newsworthy claims of misconduct.  Thomas was about as thinly qualified as Supreme Court nominees come (Harriet Miers later lowering that bar before withdrawing), with the American Bar Association famously giving him their lowest "qualified" rating.  He was, by any measure, not among the most qualified or even plausibly predictable nominees.

For those who are finally admitting to themselves that the current version of the Republican Party is an enormous exercise in bad faith, it is essential to remember that their dishonesty is hardly unique to present-day Republicans.  For all of the ex-post veneration of the first George Bush, he was willing to engage in the most blatant racial politics.  Not only did he win the presidency in large part by using a scary-looking African-American felon as the face of his "liberals want you and your beautiful white wife and children to die" message, but he (as the leader of the party that railed against affirmative action) cynically put Thomas forward to replace Thurgood Marshall on the Court.  This was bad faith all the way down.

Worse, Thomas's performance during the initial round of hearings should have embarrassed his sponsors (and himself).  With a straight face, he claimed never to have thought seriously about Roe v. Wade, a claim so absurd that it still amazes me that he even considered saying it out loud.  Although his performance in the second set of Anita Hill-specific hearings was disgusting ("high-tech lynching" -- more shameless bad faith, quickly endorsed by the defenders of Jim Crow), he had disqualified himself on the merits before she uttered a word.

Even so, Republicans and enough conservative Democrats were all set to confirm Thomas.  It is worse that they did so even after the sexual harassment charges came out -- and after they badgered Anita Hill and put her on trial -- but it was plenty bad that they were all set to put an under-qualified dissembler on the highest court in the first place.

Kavanaugh's situation is different in key ways, of course.  Most obviously, his resume looks more like a Supreme Court nominee's resume would be expected to look.  Like Thomas, however, he is obviously to the right even of his most right-wing brethren.  Unlike Thomas, he is also benefiting from an abuse of process that the Republicans have perpetrated against the American people, hiding his record and rushing through the nomination.

The most straightforward explanation for all of this is the Republicans' increasingly brazen attitude about power politics.  They no longer seem to care about paying even lip service to fair procedures, so long as they can get away with what they want to do.  They have the votes, and they will get their man on the bench.

All of this is rather stunning, in its way, because there is plenty of reason to believe that Kavanaugh's substantive views are not the norm within the Republican Party.  There is a separate question about whether any such differences would matter on the Court -- whether a Justice Kavanaugh would actually be worse than anyone else that the Federalist Society might put forward for Trump and the Republicans to rubber-stamp -- but that will have to await another day.

The point here is that one could have imagined some Republicans saying, at least in advance of the nomination, "Hey, there are differences among these very conservative potential nominees, so can we try to find the one who is closest to a consensus candidate for our party?"  Instead, they all simply went along with Trump and are pretending that Kavanaugh does not have, for example, extreme views on executive power.

Whatever their reasons, then, Republicans in the Senate have been willing to embrace Kavanaugh, even though he is substantively not in their mainstream and even though they are violating every procedural norm possible to get him on the bench before the mid-term elections.  But what about non-elected conservatives?

A particularly bizarre defense of Kavanaugh appeared in The Washington Post earlier this week.  What is most notable about it is that it was written by Max Boot, a columnist who is one of the loudest NeverTrump conservatives in the country.  Boot's columns in the Trump era have overflowed with righteous anger about Trump's threats to the rule of law.  Unlike his fellow Post columnist and NeverTrumper Jennifer Rubin, however, Boot announced that he thought Kavanaugh should have been confirmed by the Senate.

To be clear, Boot made this announcement in the context of arguing that the sexual assault allegations now make it imperative that the Republicans not "muscle through Kavanaugh's nomination."  It is at least possible to read Boot's posture here as saying, "Hey, I wasn't an anti-Kavanaugh guy, so my concern about the credible assault allegation is not merely an alternative route to my first-best outcome."

Perhaps that pose is what Boot was trying to strike, but if so, he needed a better substantive argument to make it look as though he had thought it through.  Here is the entirety of that argument:
"Until now, I would have urged a Senate vote in favor of Kavanaugh despite my own disagreements and misgivings with and about him. As I have noted, I don’t buy Kavanaugh’s originalist pose as someone who will not impose his own political views from the bench. I fear that, if confirmed, he would dramatically curb or even overturn the line of abortion cases dating to Roe v. Wade. Just as troubling is his expansive interpretation of executive powers, which could lead him to support President Trump’s attempts to escape justice even as special counsel Robert S. Mueller III gains the cooperation of more of his aides. But there was no doubt that Kavanaugh is superbly qualified for the court, and his views place him solidly in the Republican mainstream. If he is disqualified on ideological grounds, then no conservative could ever sit on the court again."
Again, Kavanaugh is most assuredly not "solidly in the Republicans mainstream," but more interestingly, what could Boot possibly mean by the phrase "disqualified on ideological grounds"?  [Update: In response to a commenter, let me be clear that I am talking about Kavanaugh pre-nomination.  As soon as Kavanaugh became the nominee, the Trump-led Republicans immediately deemed him to be their favorite guy ever.  But that is a different matter entirely.]  Boot lays out very good reasons not to confirm this nominee, most importantly the possibility/likelihood that Trump chose Kavanaugh over other just-as-superbly-qualified candidates in order to subvert the Constitution and keep himself in power.  In what way would that objection -- or, even more obviously, simply the objection that the process was hijacked by Republicans and turned into a sham -- be "ideological grounds"?

The argument here is not that Kavanaugh should be rejected because he has conservative judicial/political views.  It is that everything about this nomination stinks, from the process to the extreme (even in context) candidate to the self-dealing by Trump.  It is simply false that "no conservative could ever sit on the court again" if Kavanaugh had been rejected last week.  A conservative who, say, announced that he would recuse himself from Trump-related matters, or who embraced a robustly conservative view of the separation of powers could surely get through after an honest and open process.  Conservatives could still be confirmed to the Court, but they would have to have different conservative views on key issues.  (And even if Roe were the issue, as it should be, it remains true that there is a good conservative case for keeping the government out of people's most intimate decisions, so a pro-Roe conservative could still be confirmed.)

Even worse, Boot then argues that his "sympathy for [Kavanaugh] only grew with Democrats’ clumsy attempts to distort his words to pander to their left-wing base."  This is the classic mindset of the bully.  Conservatives who have closed off all other avenues dismiss protesters as "clumsy," trying to make it seem that it is all a matter of style.  Boot complains that Democrats, who have been shut out of the process and given but a few data points of information about a nominee for lifetime tenure on the Supreme Court, tried mightily to connect those dots.

Boot's key example is telling.  He asserts that Senator Kamala Harris supposedly mischaracterized Kavanaugh's use of the phrase "abortion-inducing drugs" to describe various contraceptives.  Boot cites The Post's FactC hecker, who gave Harris a four-Pinocchio rating for that claim.  Both Boot and the Fact Checker are wrong.  I will explain why after a short digression about the Fact Checker.

Shortly after Justice Kennedy announced his retirement, the Fact Checker claimed that "Democrats are simply spinning a false narrative" in complaining about Mitch McConnell's opportunistic effort to rush a nominee through the Senate prior to the mid-terms.  As I explained at the time, the Fact Checker simply ignored examples of Republicans having justified blocking Merrick Garland's nomination because it was an "election year."  The Fact Checker chose instead to say that McConnell "clearly" was basing his position on 2016 being a presidential election year.  Even that standard was a complete fantasy that McConnell had made up out of thin air, but the Fact Checker decided that it was the Democrats who were the spinners.

But at least that bogus assessment did not carry a Pinocchio rating with it.  Here, as Boot intones, Senator Harris was judged guilty of the worst level of political dishonesty.  Why?  Because Kavanaugh had supposedly used the phrase "abortion-inducing drugs" only because he was describing the litigants' position in a particular case.  So when Harris said that his phrasing was a signal that he would soon be "going after birth control,' the Fact Checker said that she was a liar liar liar liar.

At best, that is naive.  Imagine that you are being asked to describe a case in which a litigant makes arguments or uses phrases that are repugnant or with which you simply disagree.  A white supremacist on trial for murder, for example, might say that "mud people" do not belong in the United States.  Or an accused rapist might say that "all women want to be raped."  How would you recount those arguments?

Would you say, "The defendant said that he should not be found guilty because mud people are not real Americans"?  Would you say, "The accusation was being challenged because all women want to be raped?"  I strongly suspect that most people would go to pains to distance themselves from those statements, using qualifiers like "so-called 'mud people'" or "because -- and I am only repeating someone else's words -- women supposedly want to be raped."

Indeed, Harris made exactly this argument, with the Fact Checker quoting her as saying that Kavanaugh used "this term ['abortion-inducing drugs'] that is extremely political and medically inaccurate with no critique or effort to note any type of disagreement."  I suppose that one might disagree with Harris about how to interpret Kavanaugh's nonexistent effort to distance himself from a conservative dog-whistle, but she is at least within the ballpark by arguing that his comments sound like a tacit endorsement.  Rather than saying that "this is a matter of interpretation, and Harris is neither right nor wrong," however, the Fact Checker gave her four Pinocchios.  That is astonishing.

All of this became fodder for a NeverTrump conservative who was willing to say that Kavanaugh deserved to be confirmed.  Boot argued: (1) If Kavanaugh goes down, no conservative could ever be confirmed, and (2) Democrats overreached in their efforts to disparage Kavanaugh.  Because of that, Trump's enabler should have been put on the Supreme Court.  Boot was wrong every step of the way.

Now that everything has been thrown into doubt, none of this seems to matter anymore.  Either the next set of hearings will result in Republicans saying, "Nothing to see here, so give us back our rubber stamp," or something will break and Kavanaugh will withdraw.  Either way, like Clarence Thomas, people will focus forevermore on whether the last stage of the process was fair, forgetting that neither man ever deserved to be considered seriously for a seat on the Supreme Court.