Reporter's Notebook

The Daily Trump: Filling a Time Capsule
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People will look back on this era in our history to see what was known about Donald Trump while Americans were deciding whether to choose him as president. Here’s a running chronicle from James Fallows on the evidence available to voters as they make their choice, and of how Trump has broken the norms that applied to previous major-party candidates. (For a Fallows-led, ongoing reader discussion on Trump’s rise to the presidency, see “Trump Nation.”)

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Midterm Time Capsule, 37 Days to Go: What Trump and Kavanaugh Have in Common

Ten weeks ago, in happier times. Jim Bourg / Reuters

Brett Kavanaugh’s suitability to serve as a Supreme Court justice differs from Donald Trump’s suitability to serve as a president in some obvious ways.

Kavanaugh has long previous legal experience, versus none in public office for Trump. For the past 12 years, Kavanaugh has held a job generally regarded as the closest thing to being on the Supreme Court—namely, a seat on the D.C. Circuit—and he has been on conservatives’ list of prospective future justices for a long time. Most people doubted, even as of Election Day, that Trump would become president. Most people have assumed, even as of now, that Kavanaugh will be confirmed.

But after this past week’s hearings, and before anyone knows what job Kavanaugh will hold next year at this time, it is fair to liken the two men in one important way: By the rules of previous, pre-Trump-era politics, neither of them could possibly have made this final career step—Trump to the presidency, Kavanaugh to the Supreme Court. Each has done things and revealed traits that would have been automatically disqualifying in the world as it existed before 2016. Donald Trump nominated Kavanaugh; Trump’s example is also shaping him.


By the pre-Trump rules of presidential campaigning, Trump’s prospects would have come to an end numerous times along the trail: when he mocked John McCain as “not a hero,” when he similarly criticized a Gold Star family, when he refused to release his tax information, when the “Grab ‘em!” tape came out, when he talked about the “Mexican judge,” when he revealed that he didn’t know what the “nuclear triad” was—the list goes on. After all, Edmund Muskie left the presidential race in 1972 to a large degree because he cried one time at an outdoor speech, in a snowstorm, and Howard Dean in 2004 to a large degree because he screamed too exuberantly one time at a post-primary-vote rally. Joe Biden was eliminated from the 1988 race to a large degree because he passed off someone else’s family-history anecdote as his own. Excesses like these became routine for Trump on the campaign trail, yet he went on.

In Kavanaugh’s case, his afternoon before the Senate Judiciary Committee revealed three traits that previous nominees who sat in that chair have carefully avoided, because they would have been considered so damaging. They were: temperamental instability; open partisan affiliations; and a casual willingness to tell obvious, easily disprovable lies. These are apart from the underlying truth of the multiple sexual allegations about Kavanaugh, which may not ever be provable.

The details in these three categories fill the weekend’s news, and have been covered in many strong posts on our site: by Matt Thompson, by Megan Garber, by Judith Donath, by Joe Pinsker, by Adam Serwer, and many others. But to explain the grouping, and why it departs from the known past:

(1) Temperament. Positions of public power that are in the public eye are uncomfortable. People disagree with you. They criticize and even hate you. Often they twist facts and reach unfair conclusions. All of this goes with the territory of being a president—or a governor, a general, a boss, any kind of leader, or anyone who has to make high-stakes decisions that involve other people, and that some people won’t like.

What also goes with the territory, or should, is a thick skin, and a long view. Politicians can get away with the occasional public flash of anger about unfair accusations. That can be part of the personality they present to their constituents, though Trump is the first to make grievance itself such a long-running political act. But judges aren’t supposed to. There’s a reason the adjective judicious has the word-origin that it does. And by past conventions, Supreme Court candidates were supposed to present themselves as the most calmly judicious of all.

Donald Trump, in Mississippi, a few hours after the New York Times story on his financial history came out. Jonathan Ernst / Reuters

The huge New York Times report today by David Barstow, Susanne Craig, and Russ Buettner, five weeks before the midterm elections of 2018, is a counterpart to the Access Hollywood tape that came out four weeks before the presidential election of  2016.

Why? Each of them involved allegations that, in any previous election cycle, would have ended a campaign or triggered major investigations.

In 2016: “You can grab ‘em by the pussy,” on tape.

In 2018: a long record of “outright fraud” by a president who has refused to disclose his tax returns or any other financial information.

From the New York Times.

To put this in perspective: the entire Kenneth Starr investigation of Bill Clinton, which by 1998 led to his impeachment, began with exposes and hearings about the Whitewater real-estate “scandal” in Arkansas, which at its most garish interpretation involved well under $1 million, a minuscule fraction of the sums discussed in the new story.


The Access Hollywood tapes apparently made no difference in the election results two years ago. Will this latest financial data make any difference in support for Donald Trump?

Who knows. Here is the tally of Republican senators who (to the best of my knowledge) have said anything about it:

This was, of course, the same day on which Donald Trump, at a rally in Mississippi, mocked Christine Blasey Ford, for her testimony against Brett Kavanaugh.

Thirty-five days to go.

Susan Collins, Republican Senator of Maine, who cast what was seen as the swing vote in Brett Kavanaugh's favor. Mary Calvert / Reuters

Brett Kavanaugh’s impending arrival on the Supreme Court is like Donald Trump’s attainment of the presidency, in this important way:

By the rules of politics that prevailed until 2016, neither of them would have come close to consideration for their respective offices. For Trump, the reasons are obvious; for Kavanaugh, they’re brilliantly summarized by one of Kavanaugh’s long-term friends here, and discussed below.

Thus the ascent of a man like Kavanaugh necessarily changes the public sense of what is within bounds, and not, for the most powerful jurists in the nation—just as the ascent of Trump has changed assessments of what is within bounds for a president, and how much protection long-standing norms can supply.


More specifically, both Trump and Kavanaugh have shifted the implicit privilege-and-responsibility bargain that had previously applied to their offices:

- Presidents, in exchange for their great power, were expected both to act, and to speak, for the interests of the entire nation — including the substantial segment that did not vote for them. (Surprising but true: Every single U.S. president except Lyndon Johnson has taken office knowing that at least 40 percent of the electorate voted for someone else. In 1964 Johnson got the highest-ever proportion of the popular vote, at 61.1 percent—but he knew that nearly 40 percent had voted the other way, for Barry Goldwater.)

Trump, with his rhetoric and policies designed continually to fire up his base rather than appeal to his more numerous critics, has obviously viewed his role differently.

- For judges in general, and Supreme Court justices in particular, a version of the same bargain has applied: In exchange for outsize, unaccountable, lifetime power, justices will at least act as if they are above personal grievances and partisan loyalties. Kavanaugh has rejected that part of the implicit bargain: with his bitter outbursts in response to testimony by Christine Blasey Ford, with his partisan appeals during the nomination process on Fox News and in a Wall Street Journal op-ed, with his comment in his written testimony that in today’s politics “what goes around, comes around.” He has, crucially, never promised to recuse himself in cases involving the executive powers, the possible offenses, or the pending investigations of the man who has elevated him, Donald Trump.

Certain roles invest the people who hold them with enormous  power over others. This happens with surgeons, airline pilots, police officers, combat commanders, judges. For that power to seem legitimate, the person occupying the role is supposed to comport him- or herself as if the role itself is uppermost in mind, not individual interests or whims. A combat commander who thinks, I’ve got to save my skin rather than How do I save my unit? will have no followers (and in the Vietnam era would have been fragged).

Kavanaugh has broken the part of the bargain in which we expect justices at least to act as if they are impartial, despite the biases every single one of them naturally brings. A justice who says of partisan politics, “What goes around, comes around” will arouse suspicion for every close call he makes.