The Morning After

Alan Zendell, September 28, 2018

Yesterday’s Senate Judiciary Committee hearing on the nomination of Brett Kavanaugh to the Supreme Court came off yesterday pretty much the way Chairman Chuck Grassley intended. There were no witnesses other than Professor Christine Blasey Ford and Judge Kavanaugh. None of the eleven white male members of the Committee questioned Professor Ford directly; instead, Rachel Mitchell, a professional prosecutor with a long history of trying sexual assault cases addressed all questions on their behalf.

There were some positive differences in style between the Kavanaugh hearing and the Clarence Thomas hearing of 1991. Professor Ford was treated respectfully, and Ms. Mitchell addressed her with professional calm and sensitivity, but then, Mitchell was there to assure that no Republican Senator could say anything that might be taken as offensive to women. They were simply muzzled.

Except for those differences, the hearing was a replay of 1991. Anita Hill was a credible, sympathetic witness back then, and Professor Ford was even more so, yesterday. Even the Republican members of the Committee acknowledged her sincerity and admitted that her testimony was believable. No one accused her of lying outright, but all of their other words and actions suggested as much without saying it directly.

The partisan nature of the confirmation process mirrored everything else the current Congress has done. We’re used to extreme partisanship, but we’ve never seen it so starkly exposed in a Supreme Court confirmation proceeding as we have this week. In 1991, the Democrats held a 57-43 majority in the Senate, while Justice Thomas was the choice of a Republican president. The final confirmation vote was close, 52-48, but it was notably bipartisan with eleven Democrats voting for confirmation and two Republicans voting against.

There was one aspect of yesterday’s hearing that I found absolutely chilling. Like Justice Thomas, Judge Kavanaugh forcefully defended himself against charges of sexual misconduct, sometimes quoting Justice Thomas verbatim. But where Thomas was disciplined and calm in his defense, Kavanaugh raged like a caged animal. Whether his fury was genuine or a well-rehearsed act, it showed a side of him that made many people, myself included, question whether he would be capable of reasoned decision making when something angered him.

Justice Thomas spent his time addressing his accuser and the allegations against him. Whether we believed him or Dr. Hill in 1991, he at least responded directly to the charges. Judge Kavanaugh spent the majority of his time in a partisan rant against Democrats, attacking Senator Feinstein (D, California) for rigging the process against him, and even accusing Democrats of seeking revenge on behalf of the Clintons because of his decades-old work with Independent Counsel Ken Starr. It was abundantly clear that his anger against Democrats was the primary motivation for his remarks.

Even highly conservative justices like Antonin Scalia, who imposed their ideology on dozens of decisions, never expressed the kind of partisan wrath and anger that was the entire substance of Kavanaugh’s response. Whatever else you may think of Kavanaugh, did his remarks before the Committee yesterday sound like the kind of reasoned Justice you want on the Supreme Court? Until yesterday, I was resigned to the likely inevitability of his confirmation. But yesterday, he scared me. His testimony sounded like Donald Trump at one of his staged campaign rallies, and I fear he will take his partisan anger with him to the Court.

As expected, the hearing ended with no input from professional investigators or any witnesses other than the accuser and the accused. Everyone knew at the outset that like the Clarence Thomas hearing this one would end with no clear outcome. With the possible exception of Senator Flake, the Committee would be evenly deadlocked along party lines. Flake could have derailed the nomination process simply by not voting with the other Republicans to send the nomination to the full Senate, but he announced this morning that he will vote in support of Judge Kavanaugh. I wish he’d gone the other way, but I believe he acted with integrity.

So we’re back where we were when Mitch McConnell tried to force a bad health care bill through the Senate. The Republicans have a razor-thin majority, and once again the decision will come down to two women, Lisa Murkowski (R, Alaska) and Susan Collins (R, Maine). I don’t envy them. They will be relentlessly hounded by the president until the final vote, and they will have to decide based on a seriously broken and partisan process.

Personally, I still believe that President Trump’s motivation in nominating Judge Kavanaugh was that he believes it will insulate him from the findings of the Mueller investigation. That’s unfair to Judge Kavanaugh, because we really don’t know how he’d rule if the Special Counsel finds that the President should be charged with crimes, but that obvious bias taints Kavanaugh’s nomination. The Trump administration has shown a reckless disregard for the rule of law since day one. It’s not surprising that that stench may now spread to the Supreme Court itself.

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