'Intergalactic freakshow' confirmation process for Kavanaugh carries lasting consequences


    Supreme Court nominee Judge Brett Kavanaugh is sworn in by Chairman Chuck Grassley, R-Iowa, before testifying during the Senate Judiciary Committee, Thursday, Sept. 27, 2018 on Capitol Hill in Washington. (Tom Williams/Pool Image via AP)

    Senate Republicans agreed Friday to delay a final vote on Supreme Court nominee Brett Kavanaugh while the FBI conducts a limited investigation of “credible allegations” of sexual misconduct against him after a dramatic and rancorous hearing that threatened to further erode the American public’s fading confidence in the legitimacy of its government.

    “This country is being ripped apart here,” said Sen. Jeff Flake, R-Ariz., at a Senate Judiciary Committee meeting Friday, declaring that he would vote to advance Kavanaugh’s nomination while calling for a one-week hold to allow the FBI to pursue claims that the nominee attempted to sexually assault someone in the early 1980s.

    Kavanaugh was selected by President Donald Trump to replace retiring Justice Anthony Kennedy earlier this summer, but his confirmation was thrown into doubt two weeks ago when Sen. Dianne Feinstein, D-Calif., revealed she had received a letter alleging that he held down and groped a girl at a party in 1982.

    Republicans resisted calls to reopen Kavanaugh’s FBI background check over the accusation, insisting that would not resolve questions about its validity. Democrats continued to demand it, though, even after Kavanaugh and his accuser, Christine Blasey Ford, testified under oath Thursday.

    The committee voted along party lines Friday to send Kavanaugh’s nomination to the full Senate for a vote, but Democrats suggested Flake’s request could bring needed legitimacy back to an increasingly partisan process.

    “Senator Flake and I share a deep concern for the health of this institution and what it means to the rest of this world,” Sen. Chris Coons, D-Md., told reporters after the meeting.

    President Trump ordered the FBI to conduct a “supplemental investigation” of the Kavanaugh allegations Friday afternoon.

    “I think it will work out very well for the country,” Trump told reporters. “I just want it to work out well for the country. If that happens, I'm happy.”

    The outcome of Friday’s Judiciary Committee meeting was surprisingly collegial, given the partisan flame-throwing that filled the committee’s chamber 24 hours earlier. In an emotional opening statement, Kavanaugh alleged that the claims against him were part of a partisan conspiracy fueled by anger over the 2016 election and vengeance for the Clintons.

    Democrats hammered him with personal questions about his drinking habits and teenage behavior while Republicans defended him and slammed Democratic tactics.

    “When it comes to this, you're looking for a fair process? You came to the wrong town at the wrong time, my friend,” Sen. Lindsey Graham, R-S.C. said to Kavanaugh during an impassioned speech.

    C. Boyden Gray, who served as White House counsel when Justices David Souter and Clarence Thomas were confirmed, said the standoff over Kavanaugh echoed the battle over Anita Hill’s claims of sexual harassment by Thomas. He lamented the harm it may cause for Kavanaugh, Ford, and the court.

    “It debases to some extent both Congress and the court itself, so I think it’s sort of irresponsible and both are put in a position where it’s virtually impossible to defend themselves,” Gray said.

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    Despite all the drama Thursday, lawmakers left the hearing with little more information than they had going into it. Ford recounted the story she told in her letter to Feinstein and Kavanaugh denied any involvement in her assault. Both said they were 100 percent certain of their accounts.

    Kavanaugh’s words clearly did little to dissuade Democrats from believing he is dishonest, deeply partisan, and possibly guilty of attempting to assault Ford.

    “Are we going to rush to put someone on the Supreme Court with this cloud hanging over them?” asked Sen. Cory Booker, D-N.J.

    Republicans appeared unmoved, as well, in their stance that Democrats are engaging in political character assassination to keep Kennedy’s seat open.

    “There were no winners in this room yesterday. None,” Sen. John Kennedy, R-La., said. “In my opinion, this has been an intergalactic freakshow. As far as I’m concerned, Congress has hit rock-bottom and is starting to dig.”

    Several Republican senators issued statements in the hours after the hearing announcing their firm commitment to vote for Kavanaugh. On Friday morning, two key Democratic senators facing difficult re-election fights in November, Sens. Jon Tester and Joe Donnelly, announced they were firmly opposed. A handful of members remain uncommitted, but experts fear the Senate is careening toward a confirmation based entirely on Republican votes.

    “I think he will be confirmed, but one of the things I regret about it as a citizen is, this looks like it’s going to be the first party-line partisan vote to put someone on the Supreme Court. This has never happened before,” Gray said, calling that prospect “very, very disturbing.”

    Such an outcome could have long-term consequences.

    “The court is political but it strives to present itself as non-political If the partisanship is both on the court and in the Senate, that’s not a good thing for the legitimacy of the court,” said Jeffrey Segal, an expert on the Supreme Court and a professor at Stony Brook University.

    If Kavanaugh is confirmed, much of the country may regard him as a liar and a predator even as he casts deciding votes in cases with far-reaching national implications. The other justice appointed by President Trump, Neil Gorsuch, will forever be tainted in the eyes of many Democrats by the 10-month blockade of Obama nominee Merrick Garland in 2016.

    “If we just step back from what’s happened with the testimonies and think about it in the broader context of the last three years, the Republican majority stole a seat from President Obama. That was just an unprecedented power grab on the part of Leader McConnell and the Republican majority. Once you get to that level, constitutional hardball takes on a completely different vector,” said Alvin Tillery, director of the Center for the Study of Diversity and Democracy at Northwestern University.

    Republicans maintain there is no recent precedent for filling a Supreme Court seat vacated in a presidential election year. They also cite not-quite-analogous comments made by then-Judiciary Committee Chairman Joe Biden about opposing a hypothetical Supreme Court nomination in the summer before a presidential election decades ago.

    “It just goes to show you the advise-and-consent function has become about partisan brinksmanship,” Tillery said.

    Republicans eliminated the minority’s ability to filibuster Supreme Court nominees to confirm Gorsuch, pointing to Democrats wiping out the filibuster for lower court judges years earlier as precedent. As a result, the minority party no longer has any leverage in the confirmation process.

    “This is the new reality in Supreme Court confirmations and unfortunately is very likely to give us a Supreme Court more tainted by partisanship than ever before,” said Richard Arenberg, a former Capitol Hill staffer and co-author of “Defending the Filibuster: Soul of the Senate.”

    In Gallup’s annual poll of public confidence in institutions, 37 percent of respondents said this year that they have “a great deal” or “quite a lot” of confidence in the Supreme Court. Twenty years ago, that number was 50 percent, but Segal would be surprised to see it slip much further, regardless of the outcome of the Kavanaugh vote.

    “I think the public is very forgiving of the Supreme Court. Even Bush v. Gore did not set the public against the court for very long,” he said.

    During his fiery statement Thursday, Sen. Graham warned that good people would not want to serve as judges if they expect to face the same confirmation process Kavanaugh went through. Experts are skeptical of that assertion because Ford’s allegations against Kavanaugh—which she said she first revealed to her husband and therapist years before Trump nominated him—created unique circumstances.

    “No one’s going to refuse to be nominated to the Supreme Court because of this, but I am also of the belief it’s very, very difficult, if not impossible, to come up with these accusations out of thin air,” Segal said.

    Tillery called Graham’s position a “nonsense argument,” noting that other conservative justices have not faced any allegations of sexual misconduct despite fervent campaigns against them from the left.

    “This did not happen to Justice Gorsuch. It didn’t,” he said. “It didn’t happen to Justice Roberts. It didn’t happen to Justice Alito. The Democrats have never falsely accused anyone of criminal sexual assault. The Democrats didn’t accuse Judge Kavanaugh of criminal sexual assault. These women have.”

    The ramifications of the last few weeks’ worth of drama extend far beyond the confines of the Supreme Court and the Judiciary Committee. Tillery views the senators’ conduct as a symptom of a deep, divisive rot infecting the political system.

    “I think that you have a different era in Washington politics where there’s no center on questions of process and moral questions Since the end of the Cold War, there’s not really been a necessity for unity,” he said.

    Segal compared the executive branch’s response to the allegations against Kavanaugh to that of President George H.W. Bush’s administration when Anita Hill’s accusations against Clarence Thomas came to light.

    “During the Thomas hearings, the Bush administration requested the FBI report,” Segal said. “Here Kavanaugh and Trump, I don’t know that they’re opposing it, but neither one of them has suggested it.”

    Critics have accused President Trump of undermining respected institutions in the country since he descended the escalator in Trump Tower three years ago: the free press, the federal judiciary, the Justice Department, the Federal Reserve, etc. Nothing about this will alleviate those concerns.

    “The Trump administration has been so chaotic that credibility of the executive branch, particularly in light of the president's war with his own Justice Department, is low with most Americans with the exception of the Trump base,” said Arenberg, now a professor of the practice of political science at Brown University.

    Similarly, the episode will reinforce perceptions that have driven public approval of Congress to new lows in recent years.

    “The partisan back-and-forth, the rush to judgement with a firm eye on the political calendar, and the decision by the Republicans to leave the questioning of Dr. Ford to a prosecutor hired for the occasion all played badly in my judgement,” Arenberg said.

    Flake’s gambit may help mitigate the damage wrought by the Kavanaugh hearings, but that depends partly on what an FBI investigation finds and how lawmakers respond.

    “If the investigation clears Kavanaugh, and they move forward with the process, then I think that a return to normalcy is more likely,” Tillery said. “If the investigation is inconclusive or condemns Kavanaugh and the Republicans continue to protect him and try to elevate him to the court it could make partisan dynamics even worse.”

    The best chance experts see to reverse the erosion of norms and restore trust in Congress and the courts is for voters to express their concerns at the ballot box. Otherwise, neither party will see much to gain from changing tactics.

    “If they pay an electoral cost at the polls, the Republicans will have cause to tack back to the center, but if that doesn’t happen, I don’t see any end in sight...,” Tillery said. “If they don’t pay any cost for this behavior, they’re not going to change, because who changes when they’re winning?”

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