For Brett Kavanaugh, Thursday’s hearing was an audition. Appearing after Christine Blasey Ford, it originally seemed the judge might find his Supreme Court nomination seriously threatened. Ford had proved a sympathetic and credible witness in detailing allegations that Kavanaugh had sexually assaulted her when the two were in high school, and managed in a plainly hostile cross-examination to solidify her account and put to bed a number of conspiracy theories about her. For the Judiciary Committee and the very few swing voters in the Senate, it would have been difficult to establish a more credible and more sympathetic denial: to match Ford fact for fact, and to outflank calls for a more thorough investigation of the claims.
But Kavanaugh’s audience was not those swing voters or even the people who might be moved by the testimony of a woman facing her alleged abuser. It seemed the one person that the would-be ninth justice was ultimately speaking to was the person who nominated him to the Supreme Court in the first place, President Donald Trump. The figure on display Thursday—an indignant, self-pitying, deeply partisan son of privilege—provided a clear view of what binds the judge to Trump, and what may still secure him a spot on the nation’s highest court. Kavanaugh’s performance also augurs what the Court might look like if he joins its ranks.
On Thursday, Kavanaugh did not show any of the stately, sphinxlike judicial restraint typical of Supreme Court nominees in such hearings, or that he’d shown in his staid, evasive answers during public hearings before the Senate Judiciary in early September. This time around, he was an avatar of rage, scolding the very senators he will need to confirm him. “This confirmation process has become a national disgrace,” he said. “The Constitution gives the Senate an important role in the confirmation process, but you have replaced advice and consent with search and destroy. Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation.”
Kavanaugh then specifically attacked Democratic partisans, characterizing his hearing as part of a reaction to the presidency of Donald Trump, and associating it with “revenge on behalf of the Clintons.” He scowled, and yelled, and wept. He scolded senators for how they did their own job. His primary mode was defiance, summed up in one sentence: “You may defeat me in the final vote, but you’ll never get me to quit.”
In their own mind, everyone envisions their public moments of indignation to be righteous, soaring eruptions of well-planned and thorough vindication, worthy of the climax moment in a biopic. Reality often falls short, as did Kavanaugh’s. While his affected stentorian family-man rage did seem to elicit emotional responses from other stentorian family men in the room, his outbursts and sniping against Democratic lawmakers did not provide vindication, and indeed opened him up to new lines of attack.
Whereas wise counsel would’ve probably instructed Kavanaugh to bend a bit and contextualize a clear pattern of binge drinking and hard partying corroborated by his calendar, written evidence, and statements from both friends and accusers, he chose to play the oak tree, unyielding in his assertion that he drank legally—a claim that appears to be clearly false—and never blacked out, or drank so much that he couldn’t remember something from the night before. Any casual observance of prep-school or Yale drinking culture would provide reason to doubt that claim. He also said that what seem to be clear sexual innuendos written in his yearbook about a female classmate were not, and evaded questions probing what they meant.
Taken separately, these small seeming lies, untruths, and omissions unnecessarily damage the credibility of Kavanaugh’s account. Taken together, though, they are essential to Kavanaugh’s audition strategy. Instead of admitting to any of the fallibility of conduct or fuzziness of memory common to mere mortals, in Kavanaugh’s recollection he is an adamantine Boy Scout, an athletic polymath who drank “too much” but who was never truly affected by too much alcohol, who despite hanging with a group of knuckleheads never disrespected women, who can remember the exact details of his entire life with the aid of a meticulous calendar. In all, what Kavanaugh’s testimony requires is not just a repudiation of allegations against him as a partisan plot, but an acceptance of him as incorruptible and virtuous, against existing evidence and common sense.
It’s clear why that strategy would appeal to one President Trump. According to The Washington Post, “Trump had privately told aides and confidants that he was disappointed in Kavanaugh’s Fox News interview, which he’d viewed as lackluster and weak, and was eager to see his nominee mount a forceful and indignant defense of himself.” Kavanaugh delivered on the indignation and more, immediately moving the White House from despair after Ford’s testimony to optimism and high praise. It appears that Kavanaugh’s demeanor was the main reason for Trump’s confidence in his nominee. According to that report, the thrilled president told associates: “This is why I nominated him!”
This does appear to be why Trump nominated Kavanaugh. Not because of Kavanaugh’s long history as a relatively run-of-the-mill member of the mainstream conservative legal elite since assisting Ken Starr with investigating Bill Clinton, and not even necessarily because of the nominee’s leanings on Roe v. Wade or presidential power, but because of a deeper kinship. It’s too fitting that a political fight involving multiple sexual-assault allegations is where Kavanaugh would prove his true fealty to Trump. All that’s really missing from the transcript of his remarks is a well-placed interjection of “Witch hunt!” into his defense.
Friday afternoon, the Judiciary Committee asked the Trump administration to instruct the FBI to conduct a supplemental, week-long background investigation into “current, credible allegations” of sexual assault that have been leveled against Kavanaugh by Ford and two other women. The committee’s move came after the retiring Arizona Republican Jeff Flake reached a “gentleman’s agreement” with the Democrat Chris Coons of Delaware, and said he wouldn’t vote for Kavanaugh’s nomination without further FBI review. Later Friday, Trump directed the FBI to proceed.
The odds that such a review will change how the handful of moderate Republicans and more conservative Democrats will vote on Kavanaugh are unknown, and depend on just what the FBI finds. Assuming Kavanaugh is confirmed, a Trumpist justice will change the dynamic of the Court beyond the numerical split between conservative and liberal judges. All justices are partisan, but his open attacks on “the left” constitute a naked political bias that might have previously been disqualifying for a potential justice. If confirmed, that bias is essentially enshrined. It always seemed unlikely that Kavanaugh would rule against major Republican priorities; but now it seems more likely that he will make all of his decisions through the prism of a lockstep long-term Republican strategy—or Trumpian strategy, should the two ever conflict. The independence of the high court from the other two branches has always been greater in theory than it has in practice, but along with the consolidation of power across branches that Trumpism appears to entail, Kavanaugh’s confirmation will likely see the Court grow closer to the executive.
Trump already has one pick on the Supreme Court, and Justice Neil Gorsuch has been an ultraconservative bomb thrower in his brief time as a justice. But as the long-awaited GOP white whale of a truly conservative fifth seat, Kavanaugh’s confirmation process ensures that if he secures that spot, the Court will operate and be perceived differently by the public, as well. Along with Gorsuch and Justice Clarence Thomas—who stared down sexual-assault allegations from Anita Hill at his own confirmation hearing—Kavanaugh would create an ultraconservative insurgency that could pull Justice Samuel Alito and Chief Justice John Roberts further right and further in alignment with Trump in major voting-rights decisions, in other civil-rights issues, and in matters to do with the Russia probe, possibly including whether a sitting president can be indicted. And if cases challenging Roe v. Wade do come to the Court and put the old precedent in danger, the optics will be thus: Two justices who faced high-profile allegations of sexual assault with indignation and scorn would be making critical decisions on women’s sexual and reproductive rights. Those optics are material in this case; they represent power, and demarcate the limits of both the political and personal agency of the groups most likely to oppose Trumpism.
If Kavanaugh is confirmed, even if Trump doesn’t sign another bill for the rest of his presidency, his will be one of the more important terms of any who’ve held the office. Not only will he have secured a conservative dream of a reliably red Court, he will have done so in a way that makes its particular shade of red one more to Trump’s liking. This should, in turn, accelerate the process of reunifying and rebuilding the GOP in his image. It’s unclear as of yet if the Senate will vote to confirm Kavanaugh, but every decision is made in the crucible of now with the weight of future decades bearing down.
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