At a fundamental level, the attempt to jam Brett Kavanaugh onto the Supreme Court closely resembles the way Republicans passed a tax cut last year. Once again we see a rushed, nakedly partisan process, with GOP leaders withholding much of the information that’s supposed to go into congressional deliberations. Once again the outcome is all too likely to rest on pure tribalism: Unless some Republicans develop a very late case of conscience, they will vote along party lines with the full knowledge that they’re abdicating their constitutional duty to provide advice and consent.
True, Kavanaugh is at least getting a hearing, which the tax bill never did. But he’s bobbing and weaving his way through, refusing to answer even straightforward questions, displaying an evasiveness utterly at odds with the probity we used to expect of Supreme Court justices.
No, the real difference from the tax bill story is that last year we were talking only about a couple of trillion dollars. This year we’re talking about the future of the Republic. For a Kavanaugh confirmation will set us up for multiple constitutional crises.
After all, if Kavanaugh is confirmed, we will be trying to navigate a turbulent era in American politics with a Supreme Court in which two seats were effectively stolen. First Republicans refused even to give President Barack Obama’s nominee so much as a hearing; then they will have filled two positions with nominees chosen by a president who lost the popular vote and eked out an Electoral College win only with aid from a hostile foreign power.
Would a Justice Kavanaugh conduct himself with the caution appropriate to such a fraught situation? Well, miracles of personal redemption do happen. But it’s very unlikely. On the contrary, every indication is that if he makes it, he and his fellow justices will abuse their power at every level.
After all, what do we know about Kavanaugh? There’s a lot we don’t know, thanks to the unprecedented way Republicans and the Trump administration are stonewalling on thousands of pages of his records. And what’s in those hidden records must be really damning, given what we already know — a record that would, in normal times, be more than enough to rule him out as a potential member of the nation’s highest court.
Remember, Kavanaugh cut his teeth working for the Starr investigation into Bill Clinton — a genuine witch hunt that consumed seven years and tens of millions of dollars without finding any evidence of wrongdoing. And he personally spent years obsessively pursuing crazy conspiracy theories about the suicide of Vince Foster.
Then he spent time working in the George W. Bush White House, which made torture a routine part of policy. In his 2006 confirmation hearing for an appellate court judgeship he declared that he played no role in those decisions. Was he telling the truth? The answer might lie in those thousands of pages of records the Trump administration is refusing to release.
Strange to say, however, he emerged from that experience as someone who believes that presidents can’t be subject to legal investigations.
Meanwhile, Kavanaugh accumulated a record as an appellate judge — one that places him far to the right on everything from the environment, to labor rights, to discrimination. His anti-labor views are especially extreme, even for a conservative.
So who is Brett Kavanaugh? If he looks like a right-wing apparatchik and quacks like a right-wing apparatchik, he’s almost surely a right-wing apparatchik. Which brings us to the coming constitutional crises.
The immediate question is how the court will handle Donald Trump’s obstruction of justice, which is likely to reach epic levels very soon. If you think Kavanaugh wouldn’t completely support Trump, I have some miracle dietary supplements you might want to buy.
Beyond that, what will happen if we eventually get a Democratic Congress and president, who try to move forward with a center-left agenda? What I mean by that, by the way, are things like expanding health coverage and raising taxes on high incomes — things that aren’t radical, and in fact have broad popular support.
There’s every reason to believe that a court including Kavanaugh would strike down everything elected officials tried to do. Policy substance aside, this would destroy the court’s legitimacy, making its naked partisanship — based, again, on two stolen seats — clear to all. But it would probably happen anyway.
In fact, the constitutional carnage might well begin as soon as next year. We know that if Republicans hold on in the midterms they’ll quickly move to destroy Obamacare and take insurance away from millions. But even if they lose, what are the odds that if Kavanaugh is confirmed, the court will find some excuse to declare the Affordable Care Act unconstitutional? Surely they’re pretty high.
So let me make a last-minute appeal to Republican senators who care about America’s future, if there are any left: Don’t do this. A vote for Kavanaugh will be a vote to destroy the legitimacy of one of the last federal institutions standing.