More on Kavanaugh (if you can stand it)

I was asked by my daughter (and others) why I did not sign the letter opposing Kavanaugh's nomination.  It's certainly not because I'm not vehemently opposed to confirming him.  Nor can I blame it entirely on learning quite late about the existence of the letter.  Rather, I believe that the "judicial temperament" complaint, though real, is also something of a red herring.  Not only is it difficult exactly to figure out what that entails.  But it is also open to the pervasive game of "whataboutism," as with Justice Ginsburg's openness about her appalled opposition to Donald Trump as a possible president.  A few people on the left noted that that was a very stupid thing to do, prudentially, but no one suggested for an instant that that should put her tenure on the Court in question or lead her to recuse herself in any case involving Donald Trump's assertions of executive power.  Secondly, what one might say about Kavanaugh is only that he was unusually open in his partisanship.  But as someone who has described the current Republicans on the Court as "running dogs of the capitalist empire," I scarcely believe that judges fail to bring with them to the Court a series of political priors that are pervasively evidenced in many of their opinions.  Jack and I have distinguished between "low politics" and "high politics."  I opposed Kavanaugh from the very beginning because I think his "high politics" include, among other things, a dangerous degree of deference to executive power, not to mention, of course, his hostility to reproductive choice (although I believe that, as an exercise of "low politics" commanded by his loyalty to the Republican Party, he will choose to strangle Roe by finding all regulations to be "reasonable" and not "undue burdens" on women rather than to overrule Roe and make the Republican Party bite the bullet on the degree to which it's really willing to criminalize abortion).  But, as already suggested, I believe that Democratic nominees also bring with them their own political priors (which I find more compatible).  What is implausible for any nominee is Clarence Thomas's claim that he would "strip down to his running clothes" and simply shed any political beliefs he might previously have expressed.  That being said,  I do think that he has also exemplified a degree of dishonest opportunism that further disqualifies him, and I would happily have signed a letter that had focused more on that.

For example, why shouldn’t his White House remarks be enough to serve as disqualifying for anyone who is genuinely undecided?  A. He clearly was lying, without a modicum of excuse save pandering to his patron, when he praised Trump for conducting a comprehensive nature search for a new justice. No halfway honest person could possibly have said that.  It bespoke a deep character flaw of sycophancy and opportunism. Wouldn’t it have been sufficient to thank Trump for this expression of confidence and let it go at that?  B. Although the Constitution ostensibly prevents inquiry into religious views—and I have been thoroughly castigated for suggesting that it is reasonable to ask someone who presents religious beliefs as central to his/her identity exactly what that means—he made his Catholicism front and center as a reason to support him (and to treat Roe as, at most, an inconvenient hurdle to overcome, whether or not to be overruled).  Susan Collins is simply a fool to trust Kavanaugh.  Daniel Webster, in his Seventh of March Speech justifying his support of the Compromise of 1850, at least could plausibly claim to be trying to save the Union.  Collins has no excuse whatsoever for her submission to the tyranny of Donald Trump and Mitch McConnell.  She deserves all of the obloquy that was visited on Webster, who had the integrity to resign from the Senate (and then become Secretary of State).  I'm sure that Trump could find her a nice country to become ambassador to.  But that's a bitter digression, and I now return to Kavanaugh.  My own view is that Kavanaugh's ostentatious emphasis on his Catholicism was simply part of his thoroughly contrived exercise in impression management. Whatever one thought of Robert Bork, whose confirmation I opposed, he was a paragon of honesty in the way he presented himself. Unfortunately, the lesson learned from that was the importance of deception in self-presentation, and Kavanaugh gave us a master class in what even some of his champions are honest enough to admit were some “deceptive” answers even if, perhaps, not perjury as a matter of law.  (My own view is that a Democratic House in January should become impeachment proceedings based on his dishonest answers to a variety of questions.)  

I’m beginning to think we’d be just as well off by returning to the old practice where nominees remained silent and let their champions and detractors duke it out. The only thing the contemporary process does, regardless of whom we’re referring to, is to diminish the respect for (and I suspect this includes self-respect) smart and talented individuals who have to spout nonsense about being umpires and their devotion to some barely analyzed notion of “the rule of law” or respect for (some) precedents and to renounce the fact that their life experiences (including “empathy”) might be relevant, along with whatever constitutes legal logic. It is as if Holmes never wrote The Common Law or The Path of the Law.

But the most important begged question left open by the letter--and this would have been true even if it emphasized more his fundamental dishonesty and lack of character--is what now.  My immediate inclination is to hope that a million men and women will march on Washington to shut the Congress down.  It is, in many ways, no more legitimate than was the British Parliament in 1775.  And Alexander Hamilton, at least as presented by Lin Manuel-Miranda, called on his fellow Americans to "rise up" against an illegitimate government.  As Michael Tomasky reminds us in this morning's New York Times, borrowing (with attribution) from a paper by the political scientist Kevin McMahon, Gorsuch and Kavanaugh represent the first time in our history that someone has made it to the Supreme Court after being nominated by a president who did not have majority support from the electorate AND was confirmed by senators representing less than a majority of the US population.  There is no serious sense in which our present system can be described as congruent with 21st century notions of democracy (by which I do not mean unimpeded majority rule).  But the most serious argument against civil disobedience is not its immorality or illegality, but, rather, the real probability that our fascistic President would use it as an excuse to declare martial law and to further the dangerous slide toward full-scale authoritarianism.  So the correct course might be to remain relatively quiet.  But that is not in the least because we should be "good sports."  This represents a rape (and I use that word advisedly) of anything congruent with a Republican Form of Government, unless that is translated into government by power-mad Republicans.