It was ugly, it was frustrating, and now the most cynical Supreme Court confirmation hearing in American history is mercifully over. Brett Kavanaugh is going to become the next Supreme Court justice not because he’s demonstrated noticeable judicial independence or integrity or because his views of the Constitution are particularly mainstream but because Senate Republicans have enough votes to squeeze him through confirmation at the behest of a corrupt president whose incompetent administration seems to be falling apart from within.
Kavanaugh is going to make it because he did not strip off his clothes and run stark naked around the hearing room. Because he did not speak in tongues or hit on any of the senators or slip up and provide any insight into his views of the expansive reach of the Second Amendment and presidential immunity. He is going to make it because he didn’t confess outright how little he thinks of abortion rights, affirmative action, and voting rights. He is going to make it because no one asked him about the Russians and the 2016 election.
Committee Republicans did a wonderful job during the course of the hearing of separating the qualified nominee from the manifestly unqualified man who nominated him. Most of the Republican members didn’t even mention Donald Trump and those who did mentioned him opaquely, in passing, in questions about executive authority and presidential liability that the nominee quickly and easily dismissed with empty words about judicial independence and the importance of not prejudging matters that may come before him one day on the Court.
But Kavanaugh, the most conventional of Republican judicial nominees, wasn’t put up for the job by a conventional first-term president. He was put up by a president who already is an unindicted co-conspirator to alleged criminal conduct; an elected official who has repeatedly tried to undermine the rule of law and politicize the work of judges and the Justice Department. Not a single senator asked Kavanaugh if he was ashamed to have been nominated by such a scoundrel. Pay no attention to that orange man behind the curtain!
Even if you don’t buy the argument that Trump illegitimately won the 2016 election because of the illegal Russian aid his team accepted, even if you don’t care that Hillary Clinton received three million more votes than Trump did, it is clear now that Trump’s presidency has become illegitimate in several ways. There is the rampant corruption. There is the racism. There is the abdication of foreign obligations and domestic responsibilities. There are the incessant lies that come from the mouth of the chief executive and so many of his tribunes.
You don’t have to take my word for it. There seems to be an endless supply of Trump insiders who are willing, anonymously, to lay bare the “amoral” chaos that exists today at the White House. And this confederacy of dunces picked from a Federalist Society list Brett Kavanaugh, who has worked his whole adult life to deftly blend conservative relationships with prime legal and judicial positions to get the gig. It’s not Kavanaugh’s fault he’ll forever be linked with this disastrous administration. That he’ll always have an asterix by his name.
But it will be the fault of Republican senators like Susan Collins of Maine and Jeff Flake of Arizona and Lisa Murkowski of Alaska and Bob Corker of Tennessee if this judge makes it onto this court at this time. These so-called “moderate” senators all have said repeatedly that they are worried about Trump’s authoritarian excesses. All have said they worry about the power he has and the power he seeks. And all surely understand that one of the most powerful checks they can impose upon Trump, today, would be to block the Kavanaugh nomination until certain conditions are met.
What conditions? For starters, the release of all relevant documents detailing Kavanaugh’s ardent, partisan work on behalf of the Bush administration. If Committee Republicans did a good job during the hearing of de-linking Trump and Kavanaugh they did a terrible job of convincing anyone that the nominee was being evaluated based on a full record. How involved was Kavanaugh in the Bush torture program? We don’t know. And we’ll never know unless we get to see the documents hidden now by Republicans under some ginned-up rule.
Kavanaugh is going to get to the Court because he didn’t say anything that ought to disqualify him. He is going to make it because those areas where he did slip up– the inconsistencies in his testimony, you could say– don’t represent the kinds of topics likely to resonate with the American people. So he was involved in a Bush-era surveillance program even though he said he wasn’t? No one cares. Nor is anyone likely to care (though they should) about whatever role he may have had in an old Senate hacking scandal.
But what exactly did he say that qualifies him? I watched him for hours and came away with the conclusion that he has mastered the art of using many words to say nothing. Take Sens. Collins and Murkowski, for example, who tell us repeatedly how concerned they are about the reproductive rights of women. Kavanaugh said nothing during his days before the committee that ought to give those two senators or anyone else any comfort that Roe v. Wade, in any meaningful form, would be safe with Kavanaugh replacing Anthony Kennedy on the Court.
Can Collins come out tomorrow and declare herself satisfied that Kavanaugh is going to respect abortion-law precedent? Sure. She can declare anything she wants. But if she does she’ll be exposing herself again as a fraud. Just like she did when she took the word of her colleagues who promised her fixes to health care laws in exchange for her vote on the tax bill. Just like they all do every day when they say they have assurances from the White House that Trump won’t try to fire special counsel Robert Mueller or Attorney General Jeff Sessions.
Kavanaugh wasn’t an inspiring presence inside that confirmation room. He came off instead as precisely what he is: a conservative functionary, a political partisan, who will try to impose his ideology on the court as soon as he arrives there. And in the same way that congressional Republicans have conspired to enable the Trump administration in its lawlessness, in the same way the Republican majority in Congress has utterly failed to provide meaningful oversight over the executive branch, the Senate Judiciary Committee utterly failed here.
In normal times that would be one thing; a harsh reminder that elections really do have consequences. But these are not normal times. Trump chose Kavanaugh in part because he hopes Kavanaugh will support his position when the legal fight comes. If and when that happens Senate Republicans will be even more complicit than they are today in enabling a lawless president. That’s the biggest takeaway from this farce of a hearing. That and the fact that Kavanaugh, like everyone else tainted by Trump, won’t easily rid himself of the taint in the years to come.
Andrew Cohen is The Spectator’s legal affairs correspondent.