On a Friday evening in 1991, Clarence Thomas’s nomination was in trouble. Anita Hill’s sober, matter-of-fact demeanor during her testimony that Thomas had sexually harassed her during their time at the Equal Employment Opportunity Commission had been inconsistent with the conservative campaign to paint her as an emotionally unstable, and perhaps romantically spurned, liar. Now it was Thomas’s turn to respond.
In Strange Justice, their chronicle of the battle over Thomas’s nomination, Jill Abramson and Jane Mayer wrote that Thomas paced back and forth in the office of his benefactor, Senator John Danforth. He told Senator Orrin Hatch of Utah that he didn’t believe he was going to make it. “Yes, you are,” Hatch told Thomas, “but it’s going to be close.”
It was Hatch who encouraged Thomas to lose his temper, so that he might deliver the strongest testimony in his own defense. “The strategy was useful from the larger political standpoint too,” Abramson and Mayer wrote. “Not only would it make Thomas angry, it would also anger the countless number of black viewers, whose sympathies were so critical to the nomination.”
Republicans dusted off the Thomas strategy on Thursday, as they sought to defend President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, from the testimony of Christine Blasey Ford, who told the Senate that Kavanaugh had attempted to rape her when they were teenagers. Like Thomas, Kavanaugh alleged that the charges were a liberal conspiracy to smear him. But where Thomas self-righteously invoked centuries of racist terrorism and oppression to defend himself, Kavanaugh’s rage was that of a member of the gilded class, whose political connections and private-school educations were supposed to shield him from scrutiny or accountability, even that which comes with an appointment on the nation’s highest court.
Where even Thomas’s supporters in 1991 stood stone-faced before his anger, several Republicans on the committee were moved to tears as Kavanaugh emotionally denied the charges against him. That’s unsurprising. Kavanaugh is one of them: a conservative white man whose comfortable life and Ivy League education has smoothed his way to one of the most important jobs in the country. He is what they want their children to be, what they want their grandchildren to be. These senators’ hearts were cold to the Muslim families trapped in airports by Trump’s travel ban, the thousands who died in Puerto Rico, the millions of black parents who fear that their children’s chance encounters with law enforcement will end in death, and the woman who had testified only hours earlier that Kavanaugh had laughed while he had attempted to rape her. But Kavanaugh’s suffering? That they understood.
Senate Republicans are poised to confirm a man credibly accused of sexual assault with a mere cursory attempt to investigate the charges. With Thomas, at least, many of the facts emerged only after his confirmation. But today’s senators are moving ahead with their eyes open, knowing of Kavanaugh’s dishonesty, his devotion to partisan vengeance over the rule of law, and the possibility that he is a sexual predator.
They will do so because they have not paid a political price for the president’s bigotry, corruption, and incompetence, and the feebleness of the opposition they face has led them to believe they never will. The Republican Party has surrendered itself to a Trumpian agenda of the restoration of America’s traditional hierarchies of race and gender, and of vengeance against those who would threaten those hierarchies. The accusations against Kavanaugh—and his conspiratorial, partisan response—have made him a fitting champion for the party of Trump.
“We had all come to see the campaign against my confirmation as evil. There seemed no other way to explain it,” Thomas would later write. Similarly, conservatives today have convinced themselves that the accusations against Kavanaugh are part of an elaborate liberal conspiracy, and the women accusing him are co-conspirators or delusional “puppets.” Like Thomas, Kavanaugh showed genuine rage. That fact does not bear on whether either nominee was telling the truth.
Thomas’s charge that the proceedings had devolved into a “high-tech lynching for uppity blacks who in any way deign to think for themselves” is now one of the most famous phrases in the history of the U.S. Supreme Court. His calculated expression of rage worked—the vote was close, but Thomas was confirmed to the Court.
Despite the insistence of senators that Thomas was being falsely accused, or that the charges could not be corroborated, after his confirmation, further evidence that Hill had told the truth, and that Thomas had lied, emerged. Hill had testified that Thomas had “used work situations to discuss sex,” talked “about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts,” and bragged “graphically of his own sexual prowess.” Thomas had professed ignorance about the porn actor “Long Dong Silver” under oath, but Abramson and Mayer later reported that Thomas was a regular consumer of pornography, and had been witnessed renting videos that fit Hill’s description of Thomas’s work conversation. Two other women, Angela Wright and Kay Savage, offered accounts similar to Hill’s but were never called to testify, allowing Thomas’s allies to portray Hill’s charges as the isolated complaints of a possibly disgruntled employee or woman scorned.
The Senate Republicans now insisting that Kavanaugh has been falsely accused, or that Ford’s charges cannot be corroborated, have refused to investigate other allegations of sexual assault from Deborah Ramirez and Julie Swetnick. Mark Judge, Kavanaugh’s childhood friend who Ford says was present at the time of the assault, skipped town on the advice of his attorney and has not been called to testify.
But if Thomas lied to the committee in denying Hill’s allegations, he also misled it about his judicial philosophy. He told the Senate that “it is important for us … to eliminate agendas, to eliminate ideologies. And when one becomes a judge … that’s precisely what you start doing. You start putting the speeches away. You start putting the policy statements away. You begin to decline forming opinions in areas that could come before your Court, because you want to be stripped down like a runner. So, I have no agenda.” He implied that his experience as a black man in the South would give him insight into the plight of Americans wronged by the criminal-justice system. He told the Senate that, passing a group of black convicts, he said to himself, “But for the grace of God, there go I.” Thomas now frequently makes speeches and appearances with conservative advocacy groups whose cases come before the Court, and merely four months into his tenure as a justice wrote that the vicious beating of a prisoner by two guards did not constitute cruel and unusual punishment.
Kavanaugh has been, by any measure, far more dishonest. In his initial testimony, Kavanaugh misled senators as to his knowledge of receiving documents stolen from Democratic committee staff during Bush-era judicial confirmation battles, Bush-era warrantless-wiretapping and torture policies, his role in the nominations of William Pryor and Charles Pickering to the federal bench, his views on Roe v. Wade, and, in an exchange with Senator Kamala Harris, his familiarity with Kasowitz Benson Torres, a law firm that has represented Trump. In his Thursday testimony, Kavanaugh insisted that he had never drunk alcohol to the point of blacking out despite an email in which he jokes about not being able to recall a blown dice game with friends, and that a cruel reference to a woman in his high-school yearbook was merely about them being friends.
Only Kavanaugh, Judge, and Ford know for certain what happened decades ago, but Kavanaugh has shown a penchant for fibs and misleading statements even while under oath.
The most important lie that Kavanaugh told, however, was in his initial testimony. Echoing Thomas’s broken promise to avoid ideology as a judge, Kavanaugh initially proclaimed that “as Justice Kennedy showed us, a judge must be independent, not swayed by public pressure … The Supreme Court must never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms. If confirmed to the Court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player on the team of nine.”
On Thursday however, Kavanaugh made his partisan inclinations clear. “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” Kavanaugh testified, blaming “fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.” He added a threat for good measure, warning his critics that “what goes around comes around.” It was yet another echo of Thomas. “While there were intermittent rumors that he might step down long before retirement age,” Mayer and Abramson wrote, “Thomas himself vowed on the day of his confirmation, at the age of forty-three, that he intended to spend the next forty-three years of his life as a Supreme Court justice. It would take that long, he told friends, to get even.”
By Kavanaugh’s own standard, he is incapable of sitting on the Court. While justices are in practice often partisan actors, hewing closely to one party’s preferred outcome in big cases, they understand their own role as impartial jurists interpreting the law and the Constitution. Kavanaugh’s characterization of the charges against him as a left-wing revenge plot shows that the illusion is not one he even cares to maintain. There is no case that might come before the Court involving partisan interests in which Kavanaugh could be impartial. Kavanaugh himself told us so.
The Democrats, as in Thomas’s day, are weak and feckless. Senate Minority Leader Chuck Schumer has, as of yet, been unable to unite his caucus against Kavanaugh’s confirmation. His minority whip, Dick Durbin, has publicly lamented the removal of chamber rules that, had they not been changed, would have granted Trump even more judicial vacancies to fill than he has today. The successful Republican effort to block the appointment of Merrick Garland to the Supreme Court, and their elevation of Kavanaugh, shows that the GOP views the Supreme Court as simply another vehicle for partisan interests. The Republican Party feels no need to serve any civil obligations, only to pursue its own ideological objectives. Until Democrats view the Court in similar terms, they will continue to lose.
The lesson of the Trump era, since his nomination for president, has been that Republicans will pay no political price for the shattering of rules or norms, or for disregarding common decency, because the Democrats are unwilling or unable to extract one. As long as this is the case, Republicans have no reason to respect any of those things. If Republicans pay a price for confirming Kavanaugh, it will only be because the American electorate has had enough.
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