Brett Kavanaugh's Hearing Is a Gilded-Age Farce and an Affront to the American Republic
That crossover of whether it's entertainment or news is the biggest crock of b.s. in television today, because it's all entertainment.
-Vince McMahon
WASHINGTON-Once you decide something is a low and very predictable farce, this job becomes very easy to do. It has been clear for weeks now that Brett Kavanaugh has the votes in the rejiggered Senate confirmation process, and barring an untimely visit by the nominee to a D.C. crackhouse between now and the eventual Senate vote, he will be on the Supreme Court likely long after I'm dead.
But, until the Senate Judiciary Committee hearings into Kavanaugh's nomination opened on Tuesday, I was willing to give at least a modicum of respect for the form of the process anyway. And, hell, there's entertainment value in Hamlet even though you know he ends up dead. (This principle also applies to professional wrestling.) Then Chuck Grassley, the committee chairman, opened the hearings, and all of that went sailing out the window and was last seen over the Netherlands Antilles.
With dozens of protesters howling in the gallery, the Democratic members of the committee wouldn't let Grassley get the hearing started. Mainly, they were angry that, on Monday night, late, the White House dumped 42,000 pages on the committee. This, of course, to the rational mind, would prevent anyone from adequately studying these documents for the purposes of using them in a considered opinion regarding a lifetime appointment to the Supreme Court. However, we are not talking about a rational mind. We are talking about Chuck Grassley, who has stayed too long at the fair. He claimed, spectacularly, that his staff had read all 42,000 pages "since 11 0'clock last night."
I have a high tolerance for the absurd in politics. But the only way a staff could read 42,000 pages in 10 hours is if they threw 39,987 of them into a furnace. If Grassley is willing to say that in public, and to stand by it when Sheldon Whitehouse of Rhode Island, about whom more anon, pointedly remarked that the whole notion was "superhuman," was proof enough that this whole exercise was even more futile and worthless than it looked to be when Kavanaugh was first nominated. Once I had come to that conclusion, I was free to let my mind wander in any direction.
For example, the entire Republican case for Kavanaugh is that he is "qualified"-went to the right schools, got on the right career track, etc.-and that his "qualifications" are the only measure by which his nomination should be judged. They all deplored the fact that the nominee (and his young children) should have to sit through this unruly hearing that John Cornyn, the unreconstructed dolt from Texas, called "mob rule," and that had Orrin Hatch wishing for protestors to be kept away from his delicate self. Individually, Tailgunner Ted Cruz, once again sucking up to the president* who slandered his wife and father, accused the Democrats of wanting to "re-litigate" the 2016 presidential election, when "there was a vacant seat on the Supreme Court," and in which "the American people" showed that they wanted Donald Trump to appoint his kind of judges by giving three million more votes to the other candidate.
Mike Lee, the konztitooshunal skolar from Utah, took us through the Wikipedia page on the evolution of the confirmation process. The classic Passion of Robert Bork was rehearsed again. Significantly, Lee neglected to mention the 1954 nomination of Justice John M. Harlan, which was held up at the request of Senator James Eastland, a racist demagogue from Mississippi, so Harlan wouldn't be seated in time to hear Brown v. Board of Education. At the time, other desegregation cases-"Brown II"-were pending, and Eastland was hoping to keep Harlan off the Court altogether.
(Harlan's grandfather, also named John Marshall Harlan, had written the legendary jeremiad against the Jim Crow south in his dissent in Plessy v. Ferguson, and Eastland sure as hell knew that, too.)
More to the point of yesterday's proceedings, Harlan's nomination was delayed because the segregationists in the Senate presumed how Harlan would rule on cases regarding racial discrimination. This, of course, is what the Republicans were deploring-that they were assuming that, for example, Kavanaugh would eviscerate reproductive rights in much the same way that Justice Neil Gorsuch, who swore up and down that he held precedent sacred, had eviscerated labor rights in the Janus case, overturning a precedent that had held for four decades. Ben Sasse. profaning the name of Schoolhouse Rock, said we have Supreme Court fights because Congress "declines to do its job."
And, inevitably, there was the Tailgunner, whose entire statement was oriented around the fact that the 2016 presidential election was unique because "there was a vacant seat on the Supreme Court." Which led the wandering mind to the single, simple rebuttal to everything every Republican had said.
Merrick Garland.
The unprecedented obstruction of Garland's nomination by the Republican majority in the Senate gives the lie to everything they said. A tough process? A Borkian process? Hell, Garland didn't even get a process. Pivotal moments in the history of Supreme Court confirmations? Garland's is unique in that history. (This was another key moment that Mike Lee somehow overlooked.) The Court steps in when Congress doesn't do its job? Congress deliberately did not do its job so that Merrick Garland would not be confirmed, and that there would be a "vacant seat" in the 2016 presidential election.
And now an allegedly criminal and arguably half-crazy president* gets to change the Supreme Court for decades. This hearing process didn't become a farce when it opened on Tuesday, nor did it become a farce when Brett Kavanaugh's name was plucked off the Federalist Society's wish list. This hearing process became a farce when President Barack Obama and Judge Merrick Garland stepped into the Rose Garden on March 16, 2016. The only thing we didn't know is how grotesque a farce it would turn out to be.
It was Whitehouse who pulled back the curtain on this puppet show. He concentrated his opening statement on what he called the "Roberts 5," the 5-4 majority that has given us a series of decisions on every issue from campaign finance to gun control, but that, as Whitehouse acidly concluded, mainly have combined in one way or the other to provide the judicial underpinning for the new Gilded Age.
Here’s how the rigged game works: big business and partisan groups fund the Federalist Society, which picked Gorsuch and now Kavanaugh. As White House Counsel admitted, they “insourced” the Federalist Society for this selection. Exactly how the nominees were picked, and who was in the room where it happened, and who had a vote or a veto, and what was said or promised, is all a deep dark secret.
Then big business and partisan groups fund the Judicial Crisis Network, which runs dark-money political campaigns to influence Senators in confirmation votes, as they’ve done for Gorsuch and now Kavanaugh. Who pays millions of dollars for that, and what their expectations are, is a deep dark secret. These groups also fund Republican election campaigns with dark money. The identity of the big donors? A deep dark secret. Once the nominee is on, the same business front groups, with ties to the Koch Brothers and other funders of the Republican political machine, file “friend of the court,” or amicus briefs, to signal their wishes to the Roberts Five. Who is really behind those “friends” is another deep dark secret. It has gotten so weird that Republican justices now even send hints back to big business interests about how they’d like to help them next, and then big business lawyers rush out to lose cases, just to get them up before the friendly Court, pronto. That’s what happened in Friedrichs and Janus.
Ultimately, for all the sincere concern about Kavanaugh's retrograde opinions on social issues, this nomination is the culmination of a long process to pry the hands of the people off their government so it can be handed over to the people who write the checks. Whitehouse then went right up in the nominee's grill.
As an operative in the second Bush White House, he cultivated relationships with political insiders like nomination guru Leonard Leo, the Federalist Society architect of Kavanaugh’s court nominations. On the D.C. Circuit, Kavanaugh gave more than 50 speeches to the Federalist Society. That’s some auditioning. On the DC Circuit, Kavanaugh showed his readiness to join the Roberts Five with big political wins for Republican and corporate interests: unleashing special interest money into elections; protecting corporations from liability; helping polluters pollute; striking down commonsense gun regulations; keeping injured plaintiffs out of court; and perhaps most important for the current occupant of the Oval Office, expounding a nearly limitless vision of presidential immunity from the law.
His alignment with right-wing groups who came before him as “friends of the court”? 91 percent. When big business trade associations weighed in? 76 percent. This is what corporate capture of the courts looks like. There are big expectations for you. The shadowy dark-money front group, the Judicial Crisis Network, is spending tens of millions in dark money to push for your confirmation. They clearly have big expectations about how you’ll rule on dark money. The NRA has poured millions into your confirmation, promising their members that you’ll “break the tie.” They clearly have big expectations on how you’ll vote on guns.
Tomorrow, we will hear a lot of “confirmation etiquette.” It’s a sham. Kavanaugh knows the game. In the Bush White House, he coached judicial nominees to just tell Senators that they will adhere to statutory text, that they have no ideological agenda. Fairy tales. The sad fact is that there is no consequence for telling the Committee fairy tales about stare decisis, and then riding off with the Roberts Five, trampling across whatever precedent gets in the way of letting those Big Republican interests keep winning 5-4 partisan decisions. Every. Damned. Time.
Are you bought, asked Sheldon Whitehouse. Are you paid for?
Those are the only questions that matter, and any answer besides "Yes," is an outright lie.
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