Ultra-Conservative Brett Kavanaugh will drag the Supreme Court to the intolerant rightby Diane Roberts / September 6, 2018 / Leave a comment
Barring the revelation that he secretly donated to the Clinton campaign, Brett Kavanaugh will soon be confirmed as an associate justice of the United States Supreme Court, dragging it even further to the intolerant right. Kavanaugh is an ultra-conservative, and there has been speculation that he could rule in favor of overturning women’s reproductive rights, won in the famous Roe v. Wade case of 1973, overturning marriage equality, lifting restrictions (such as they are) on campaign donations by corporations and plutocrats, and sweeping away environmental protections, affirmative action, and the tattered remains of the social safety net. There is fear that once on the bench, he may also vote to immunise Donald Trump from prosecution.
Ultra-right wing, Trumpist politics are not shared by most Americans. A majority do not want to see abortion outlawed, nor do they approve of the way our politics are driven by corporate money. Most Americans worry about clean air and clean water: a recent Gallup Poll shows that 62 per cent want the government to do something about climate change—the highest ever indication of concern. Americans want affordable heathcare—with or without Obama’s name attached to it; they’re not sure most Mexican immigrants are rapists and murderers; and, in increasing numbers, they think the current occupant of the White House has probably done some pretty unsavory, possibly criminal, things.
According to the national myth, America’s high court is supposed to interpret the law from on high, immune from the quotidian passions of society. And perhaps some Americans still cherish the fantasy that the Supreme Court is above politics. If that was ever true (which is debatable) it certainly isn’t now.
Watching the Senate confirmation hearings of Trump’s second Supreme Court pick should forever kill off the image of nine black-robed philosophers soberly and objectively examining the warp and weft of the law with Olympian detachment. Dozens of protestors have been arrested by the capitol police. The hearings began with Democratic senators loudly demanding that they be adjourned and postponed. Lest that seem a petty parliamentary manoeuvre, don’t forget that Republicans have denied Democrats access to 100,000 documents dating from the time Kavanaugh worked in the George W Bush White House. Kavanaugh claims he was just a low-level paper-pusher who only found out about nasty practices such as extraordinary rendition and torture when he read it in the papers. Senators Patrick Leahy of Vermont and Dick Durbin of Illinois have said they suspect there’s a lot more to it than that. But it’s impossible to know without the relevant paperwork which, until this nomination, was made available to both sides of the aisle as a matter of routine vetting.
For their part, Republicans are even more unctuous in their non-questioning of the nominee than they were with Neil Gorsuch, Trump’s first Supreme Court pick. They trowel on the praise for Kavanaugh’s Solomonic wisdom, his fair-mindedness, his well-mannered daughters, his wit, his charm, his legal erudition. You’d think they were about to ask him out on a date.
Like all high court nominations in recent memory, this is a partisan grudge match, dating back at least to 1987, when Ronald Reagan nominated paleo-conservativeRobert Bork to the Supreme Court. Bork infamously carried out Richard Nixon’s Justice Department “Saturday Night Massacre” in 1973, firing Watergate special prosecutor Archibald Cox when he asked for Oval Office tapes. Bork’s senate hearings 15 years later were spectacularly nasty. Sen. Edward Kennedy gave a speech in which he proclaimed: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government.”
The Senate voted down Bork’s nomination, and Republicans vowed revenge. Similarly, a lot of Democrats have never gotten over the Bush v. Gore decision of 2000, which handed the presidency to George W Bush on what still looks like wobbly constitutional grounds. Nor have they forgiven Republicans for refusing to take up Barack Obama’s 2016 nomination of Merrick Garland, Chief of the United States Court of Appeals for the District of Columbia Circuit (the court on which Brett Kavanaugh current sits) on the risible grounds that since it was an election year, the sitting president should not be allowed to choose a new justice but should defer to the incoming president in 2017.
Now the court is about to seat a man who has written law review articles suggesting that presidents must not be investigated or indicted while in office. Kavanaugh also seems to feel a sitting president cannot be subpoenaed. During the hearings, Democratic senators tried in vain to get Kavanaugh to say something that would sink his nomination. But Kavanaugh, like most Supreme Court nominees of either party, has been coached to say nothing, to evade, to deny, to stonewall. So far, it’s going well for him. He has even managed to shrug aside Trump’s attacks on the Justice Department, in which the president lambasted Attorney General Jeff Sessions for prosecuting two Republican congressmen just before the midterm elections.
Donald Trump’s presidency is in disarray. He is, as Lawrence Tribe, professor of Constitutional Law at Harvard, put it, “a named subject of a criminal investigation.” Someone senior in the White House has written an unsigned opinion piece for the New York Timeslamenting an id-driven administration in which the president’s tantrums take the place of policy. And Bob Woodward, half of the famous Watergate reporting team of Woodward and Bernstein, has produced a new book depicting Trump’s presidency as “crazytown,” a shark tank of backbiting aides, appalled generals who call the president an “idiot” and a “moron,” and terrified officials lawyering up in anticipation of endless court cases.
Nothing in this pandemonium of a government can be called certain, but it could be that Trump may yet evade any penalty for his assaults against decency and democracy. In a couple of weeks, when Kavanaugh is confirmed by the narrowest of margins, Trump will boast yet another friend in a very high, very helpful, place.