By Lili Loofbourow September 17, 2019
We’re approaching the anniversary of one of the nastiest political battles it has been my misfortune to witness—the confirmation of Brett Kavanaugh to the Supreme Court despite credible accusations of sexual harassment and assault and his shockingly partisan and untruthful statements at his hearing. His confirmation was pushed through thanks in part to a sham FBI investigation, the absurd limits and constraints of which continue to emerge as people come forward to say no one wanted the information they had to offer. Those of us who would have liked to know the full truth—through a thorough FBI investigation that questioned all the relevant parties and witnesses, including the principals—remain unimpressed by angry claims that accused men like Kavanaugh aren’t getting “due process.” Republicans devised the very process they went on to angrily condemn, but it was Christine Blasey Ford (and Deborah Ramirez) who were cheated of anything like real fact-finding. No process was followed here. This was domination theater, and it was a bad gamble. The stakes were too high for the GOP to make this play. It would be one thing if the egregiousness of Kavanaugh’s confirmation didn’t last—if it had flared during those awful September days last year and then faded just as quickly. But this will not fade. Kavanaugh’s bizarre fibs and self-serving lies under oath; his tantrums and threats; the odd effort to cast the allegation as a case of mistaken identity; the inexplicable refusal to subpoena the one witness to Blasey Ford’s accusation, Mark Judge, who went into hiding—these things happened a year ago, but their effects are permanent.
We are learning more, but hindsight cannot correct what was done and not done during those awful weeks. Bizarrely handled reporting at the New York Times over the weekend revealed that Deborah Ramirez’s allegation had corroboration. It also revealed that Republicans and the FBI knew of at least one other allegation: A former Yale classmate, Max Stier, remembered a drunken Kavanaugh revealing his penis at yet another gathering, though the inebriated woman into whose hand his penis was allegedly “pushed” declined to be interviewed and said she does not recall. We know now, as the Los Angeles Times reports, that the FBI “did not interview other classmates who said they had heard at the time of either the incident Stier reported or the one involving Ramirez.” Limiting the investigation hurt the Republican case too: Blasey Ford’s friend Leland Keyser, for instance, now says she doesn’t think the pieces of her friend’s story “fit.”
If Kavanaugh’s defenders hoped that no other details would come out, or that they wouldn’t matter once he was confirmed, they were wrong. It’s hard to imagine a more injurious way for this story to unfold. Kavanaugh’s alleged alcohol-fueled “youthful indiscretions” were awful on their own, no matter how long ago they happened. The claim that investigating them would have risked unfairly penalizing responsible adults for embarrassing behavior omits that Kavanaugh did not admit to this conduct or claim he has grown wiser over the years. Then there is the deeply offensive irony that his appointment takes us closer to criminalizing abortion, including for girls the age Kavanaugh was when these events allegedly occurred: Only for girls should the consequences of youthful indiscretions be life-altering and permanent. Lastly, and most importantly, the conduct Kavanaugh was accused of, which our culture has long excused as “harmless fun,” to paraphrase a now-deleted New York Times tweet, can be life-changing for its victims—as Blasey Ford testified. These are serious matters, and in the ensuing year, they have not been successfully hand-waved away, because they were not treated with the seriousness or gravity or thoroughness they deserved. We now know that the FBI contacted only nine people, all of them from the list Republicans submitted. None from the alleged victims’ lawyers. Not one of the many people who have since said they approached the FBI hoping to speak to Kavanaugh’s past got to share what they knew. The result is the civic equivalent of a wound that became infected because it got covered up too soon. And sepsis has reached the last place Americans would have wanted it to: the Supreme Court. That is a tragedy, and not a short-term one.
The winners do not see it that way. Mired in what they wrongly imagine to be yet another “unfavorable news cycle”—cycles that the president seems invulnerable to—they believe this bad news will age out. Kavanaugh’s confirmation will be one more outrage for snowflake libs to “get over.” But this myopia cannot obscure the bigger story of how this action has affected a republic whose institutions were already crumbling. Merrick Garland’s nomination may not have faded in our national memory, but Kavanaugh’s will blaze.
That the GOP has embarked on a nihilist project is unsurprising. Neither is the fundamentally undemocratic nature of that project, in which the political victories that buoy the Republican Party perpetuate the power of a minority over a majority. (More Americans last year believed Kavanaugh should not have been confirmed.) Trumpist Republicans made a choice long ago to operate as if Americans as a whole do not matter. That’s a perfectly straightforward strategy. But if you’ve noticed some Republicans wondering (usually trollishly) why “libs” can’t take defeat when they lost fair and square—or drawing false equivalences to Robert Bork’s hearing, which culminated in six Republicans voting against him—the extent to which they’ve hollowed out the “fair and square” part is not incidental. They’ll advise “letting the anger go” while crowing about revenge (for Obama, for Bork’s loss) and relishing the fact that Blasey Ford’sfather is now alleged to have congratulated Kavanaugh’sfather on the confirmation. They do not find the ever-widening divisions distressing.
The question is: Does that matter? Only if you care about the integrity of American institutions. It’s clear now that a large portion of Americans will never find Kavanaugh’s confirmation legitimate. This was not an inevitable result of partisan polarization. Neal Gorsuch encountered none of these issues. Clarence Thomas did go through a contentious hearing and abbreviated FBI investigation, but at least there are arguments that make that painful episode open to some mitigation. The public wasn’t that familiar with sexual harassment yet (Thomas still had the majority support of the country even after the hearing), it was a different time, etc. But a quarter century later, especially with the Thomas hearings as precedent, there is nothing to excuse what Republicans did for Kavanaugh. They could have easily confirmed someone else without Kavanaugh’s baggage and temperament. Instead, they turned it into proof of their power. The GOP actually tried to steer Trump away from Kavanaugh at first. But once the nomination was made, the party refused to admit his flaws and went all in.
It did so knowing, of course, that there is effectively no recourse to a lifelong appointment. It didn’t matter to the party’s assessment of his fitness that more than 2,400 law professors signed a letter objecting to Kavanaugh’s confirmation. The 83ethics complaints filed against Kavanaugh have been dismissed for reasons that may remind you of Mueller’s reasons for not indicting Trump—it’s not that they had no merit, but that the complaints could not be pursued after he was confirmed. The man had ascended too high to be subject to any discipline or review. As the American Bar Association put it, the 10th Circuit’s judicial council “ruled in December that it had no jurisdiction because the federal law governing judicial misconduct complaints does not apply to U.S. Supreme Court justices.” An effort to impeach Kavanaugh would be so fraught that Ruth Bader Ginsburg and Sonia Sotomayor have very professionally professed their liking of him, in an effort to preserve the integrity of the institution. Democratic candidates Elizabeth Warren, Kamala Harris, and Julián Castro have called for Kavanaugh’s impeachment, but Democratic Whip Dick Durbin said, “Get real.” An illegitimate confirmation backed by a sham investigation must be treated as if it were legitimate. If all that matters is partisan scorekeeping, then the so-called victors will look at this and think this somehow burnishes the victory.
But this will not pass. This is only the first of many anniversaries when Americans will revisit this awful episode, and every time we will be struck anew by the modern GOP’s turpitude, the hearing’s brevity, the abridged investigation, and the corrosive permanence of the effects. A party hell-bent on winning triumphed this round, but it has no idea what’s coming if an institution that most Americans no longer respect tries to move the law in an unpopular direction—like banning abortion. Despite this country’s revolutionary past, Americans have temperamentally been law-abiding institutionalists. That can change. Granted, it would take an enormous amount of bad faith to construct a government so unrepresentative and unworthy of trust that working around a Supreme Court decision with civil disobedience would come to seem not just thinkable but necessary.
Republicans made a certain calculus when they confirmed Brett Kavanaugh to the Supreme Court: victory at any price. The GOP has celebrated the victory. It has not yet understood the price.
Source: Slate
