They were celebrating at the White House Saturday after the confirmation of Judge Bret Kavanaugh to the Supreme Court. Senate Majority Leader Mitch McConnell and Republican members of Congress will tout this as a huge victory for conservatives. And millions of President Trump’s supporters, particularly evangelicals, will now be salivating for the end of constitutionally protected abortions and gay marriage.
But for the rest of us — hopefully the majority of Americans — Kavanaugh’s confirmation means our democracy has been seriously undermined. Republicans will control all three branches of government if Democrats don’t take the House and/or Senate in November and the separation of powers as designed by the Founders in the Constitution won’t exist.
Republicans railed against Democrats on the Senate Judiciary Committee for attempting to derail Kavanaugh’s confirmation. But remember, McConnell aggressively blocked President Obama’s appointments to the federal bench and he refused to even hold hearings in 2016 when Obama nominated Judge Merrick Garland to fill a vacancy on the Supreme Court. The many obstructive actions taken by McConnell during Obama’s tenure poisoned the atmosphere in the Senate.
So, it’s not surprising that the Kavanaugh’s confirmation hearings were filled with drama highlighted by partisan maneuvering and heated rhetoric. It all started with McConnell’s rush to judgement on filling the vacancy left when Justice Anthony Kennedy announced his retirement in June. He was desperate to get Kavanaugh seated on the Court before the end of September. McConnell no doubt thought it would improve Republican chances in the midterm elections and he probably feared they might lose control of the Senate in November.
Most readers know the chronology of Kavanaugh’s confirmation process so I won’t repeat it in detail here. But McConnell’s plan seemed to be working for the first few weeks and he was ready to schedule a vote after Democrats were blocked from a comprehensive review of Kavanaugh’s extensive paper trail. Then the bombshell letter from Dr. Christine Blasey Ford surfaced, claiming that a drunken Kavanaugh had sexually assaulted her when both were in high school in the early 1980s.
Kavanaugh gave an unprecedented interview on Fox News to plead his case. Some friends and acquaintances signed letters that were supportive of the judge but others wrote articles and gave interviews that seriously contradicted Kavanaugh’s drinking denials. After Ford’s emotional, compelling and credible testimony, many observers began to wonder how Kavanaugh could recover when it was his turn to testify.
Reports indicate that Kavanaugh was told to show how he really felt about the hearing process and it was very revealing. Reading from his own written statement he said:
“This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups,” He almost snarled “This is a circus.”
After the backlash to this highly political defense, Kavanaugh wrote an exculpatory op-ed for the Wall Street Journal, again, unprecedented for a nominee. Even so, a letter opposing his confirmation was signed by 2,400 law professors and former Justice John Paul Stevens — a Gerald Ford nominee — said Kavanaugh was not qualified to serve on the Court. But this opposition didn’t matter to McConnell and his Republican caucus.
The FBI supplemental background investigation that was forced by Sen. Jeff Flake (R-Az.) was depicted as sham by many, no doubt restricted by the White House. Kavanaugh and Ford were not interviewed. Numerous persons with knowledge of Kavanaugh’s high school and college escapades attempted to contact the FBI but were rebuffed. So, Republicans, including Flake, called this incomplete FBI report “thorough” and ignored all other evidence.
Personally, I believe Dr. Ford was telling the truth. And it is entirely possible that Kavanaugh has no memory of the party or the attack on Ford. Perhaps the night’s events left no lasting impression on him; heavy, possibly binge, drinking can do that.
It seems clear from the facts and testimony, however, that Kavanaugh did not tell the truth about his past and his drinking. It is also obvious to me that his written and spoken statements show a lack of judicial temperament and a strong conservative bias that should disqualify him to serve on any court.
Kavanaugh was confirmed by the narrowest margin of any justice since 1881 — 50 to 48. Throughout his tenure there will be as asterisk by his name and his opinions will be dissected for political bias. Robert Post, the former dean of Yale Law School where Kavanaugh graduated in 1990, said in an op-ed that Kavanaugh will “undermine the [Supreme Court’s] claim to legitimacy,” calling his confirmation “an American tragedy.”
This fiasco by Republicans could scar the Senate for decades. The FBI’s reputation has suffered. And Kavanaugh’s highly partisan, unsubstantiated accusations of a “political hit” will further divide this nation. But the biggest losers are the millions of women who are sexually assaulted and fear being ridiculed like Dr. Ford was for speaking out.
If there is any glimmer of hope for the future of the Court and its independence it is Chief Justice John Roberts. He could – I say could – become the swing vote in order to preserve his legacy as Chief Justice and protect the reputation of this critically important institution. We shall see.