Sunday Morning Quarterbacking: The Kavanaugh Edition

It’s all about Sunday morning quarterbacking, isn’t it?

(Photo Credit: Getty /Images)

Optics for Republicans

Trump wins… on several fronts: his nominee has been confirmed; the GOP rallied behind his nominee and thus by absentia, the party rallied behind Trump, just four weeks before the midterm elections.

McConnell, again, looks like a master tactician and legislator… Henry Clay, Sam Rayburn, Lyndon Johnson, Tip O’Neill, Newt Gingrich, and Mitch McConnell?

See:

https://www.senate.gov/artandhistory/history/common/briefing/Famous_Five_Seven.htm

In Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls:

  • CNN* 9/25 – 9/29 693 LV 4.6 47 43 Rosen +4
  • Gravis 9/11 – 9/12 700 LV 3.7 47 45 Rosen +2
  • Suffolk* 9/5 – 9/10 500 LV 4.4 42 41 Rosen +1

[Of course, that makes me wonder why Heller wasn’t invited into the meetings with Collins, Murkowski, and Flake; or why he wasn’t more targeted by the liberal media, activists, and Senators. Heller is hardly the most conservative and ideological member of the GOP Caucus: according to Senate Report Cards, Heller is the 36th most conservative U.S. Senator out of a possible 52/53 (the ranking was conducted before Sen. McCain’s death; McCain was ranked 45th).]

To Democrats, Mitch McConnell’s insistence on a procedural vote on Friday 10/5/18 and his pre-announcement of that vote before the supplemental FBI investigation was even concluded, smacks of political disdain for the investigatory process and a rush to judgment (after all, the final vote was essentially a straight party vote).

To Republicans, Brett Kavanaugh is a victim of slander, liberal conspiracies, and collusion between the female accusers… Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms. Yet, in terms of optics, the all White-Male Republican members of the U.S. Senate Judiciary Committee voted to send the nomination of a fellow White-Male to the floor for a full vote. It looks like almost everything Republican have accused Democrats of regarding race warfare and identity politics.

Optics for Democrats

The Democrats look bipolar at best:

First and foremost, the Senate Democrats lost. In particular, Diane Feinstein (CA-D) seems to have lost political points with her GOP colleagues. [And soon-to-be Governor Garvin Newsom is waiting in the wings; he needs Feinstein to hang on, just a little bit longer before he runs for her (lifetime) seat.]

I don’t remember the Senate Democrats fighting for Merrick Garland this aggressively? But, of course, most pundits thought the Hillary Clinton would become the 45th U.S. President so that the fight wasn’t necessarily worth the Senate Democrats’ political capital.

Nor do I remember the Senate Democrats attacking Neil Gorsuch this aggressively? Of course, Gorsuch’s nomination didn’t change the net math of the political alignment of the U.S. Supreme Court, and the Gorsuch nomination process occurred 15 months before Kavanaugh’s nomination process began, almost 19 months before the next election.

Which brings me to my next point: There are two ways to interpret the political theater of the past month or so, and the two lenses are not necessarily mutually exclusive.

First, there is the moral line of thinking. As mentioned in the previous commentary on the Kavanaugh nomination, three successful career-driven women accused Kavanaugh of various sexual inappropriateness, from attempted rape to sexual harassment.

Secondly, there is the political line of thinking. Democrats can be political and moral, just as easily as either party can be political and immoral.

To Democrats, this is an example of why Gorsuch was treated differently; no allegations were made against Justice Gorsuch, whereas allegations were made against Kavanaugh. “Where there’s smoke, there’s fire” argument necessitated further hearings and, at the insistence of Republican Jeff Flake of Arizona, a supplementary FBI investigation.

[To Republicans, the Kavanaugh nomination was treated differently because of the calendar. Each incident seemingly brought to light at the last possible moment in an apparent and orchestrated attempt to slow down the process to get the final floor vote closer and closer to the November midterms.]

There is a Difference between Partisanship and Political Ideology

Of course, the partisan division of the Senate is 51-47(2), so within the context of the exercised nuclear option in 2017 and party cohesion, the Democrats were always going to lose. A lot of their political strategy was based upon the new Gang of Six and the tightness of the calendar.

But disturbing to me was the rhetoric from Republican Senators and the President that identifying the allegations, calls for supplementary hearings, and supplemental investigations… Senate Republicans and the Trump Administration blamed it all on “The Democrats.” I don’t remember the same ire being directed at the Republican members of the Gang of Six?

Even more disturbing, was Justice Kavanaugh’s usage of the phrase, “The Democrats.”

As I said in earlier podcast, this nomination was always about the new (temporary) Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). [And, the Gang of Six, didn’t invite Donnelly or Heitkamp to that secret meeting last week, did they?] Heitkamp is likely going down in the November election, Manchin may save his seat, but leave many wondering, why he is a Democrat again? Essentially Manchin and Murkowski swapped votes; the Kavanaugh confirmation belongs to Susan Collins (ME-R).

And, again, in Nevada, in perhaps one of the most closely watched Senate races, Democratic Congresswoman Jacky Rosen is now leading Republican incumbent Dean Heller in the polls. Why was this not more of an issue in the Kavanaugh proceedings?

The Future of Brett Kavanaugh

Pyrrhic victory? For many Democrats, he is now forever tainted. He is the Clarence Thomas of the 21st century. Does he, Kavanaugh, care? Does he attempt a remake of his image? Or does Kavanaugh, as Bethany Mandel (editor of Ricochet) suggests, become more radicalized himself in terms of cases of due process and the presumption of innocence?

In my Op-Ed in the Providence Journal on July 26, 2018, I definitively stated that Kavanaugh was qualified to be confirmed as an Associate Justice of the United States Supreme Court. I firmly believe the President of the United States has the right to nominate his person to the Court. Barack Obama had that right, and Donald Trump has that right too. But that was before the sexual accusations and the apparent perjury before the U.S. Senate Judiciary Committee, as well as the woefully inappropriate display of temperament, particularly toward Amy Klobuchar (MI-D) and Sheldon Whitehouse (RI-D).

Even more disturbing than the rhetoric from President Trump and many Republican Senators who used the phrase “The Democrats” as a swear and explain-it-all for all the evils in the Universe, however, was Justice Kavanaugh’s usage of the phrase, “The Democrats.” The veil of judicial apolitical independence and nonpartisan neutrality continues to be shredded.

The Future of the US Supreme Court

Sad and partisan… Pathetic. This is the ugliness of the so-called nuclear option which both parties had been threatening for years… 

Specifically, the political mess of the Kavanaugh Nomination was created on April 7, 2017, when the Republican-led U.S. Senate exercised the “nuclear option” but its roots lay in the blocking of Merrick Garland’s nomination to the Supreme Court. That’s a fact, not ideological blame. [Neither party is innocent: Majority Leader Mike Mansfield (MT-D) eliminated the ability to halt all proceedings with the introduction of the “two-track system” and, in 1975,  Mansfield revised the Senate cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, except for changing Senate rules which still requires a two-thirds majority of those present and voting to invoke cloture. On January 25, 2013, Harry Reid (NV-D) changed the Senate rules to prohibit a filibuster on a motion to begin consideration of a bill. No, neither party is innocent, but the GOP desperation to hold on to a 5-4 majority in terms of Merrick Garland, and the even more eager, gluttonous desire to move the court to a solid 5-4 regardless of the cost is the most acute reason that we’ve arrived at this point. In the past three decades, there have only been two nominations which were confirmed by a Senate Majority of the opposite party:

  1. In 1990, the Democrat-led Senate Judiciary Committee reported Republican-nominated Souter out the committee by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9.
  2. 106. In the 1991 Thomas’ confirmation process, the Democrat-led Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Republican-nominated Thomas was confirmed by a 52–48 vote by the Democrat-controlled US Senate on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

Both times Democrats confirmed Republican nominees and, in the case of one of those nominations, it could have been filibustered but was not. This is what fuels Democrat ire and accusations of hypocrisy. 

In my podcast on September 15, 2018, I think I made the point, though it is worth reiterating: Eleven justices have been appointed to the U.S. Supreme Court since O’Connor, with a twelfth confirmation and appointment imminent: Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, RBG, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch. Confirmations used to be more unanimous with the exception of Clarance Thomas.

It is also worth noting, that only from 2009–2011 in the 111th Congress did either party have a super-majority. In most other years, the U.S. Senate was split roughly 50-50, plus or minus two to 5 seats. What has happened? We have increasingly politicized the Court, we have nominated more and more ideological candidates to the U.S. Supreme Court instead of nominating people, we’re nominating party. A return to civility in SCOTUS nominations is long overdue.

And the 2018 Midterm Elections

Which is the excited political base(s): The party with the momentum is usually hurt the most in the impending election.

Is it the Blue Wave that cometh?

Or is the upcoming wave For the GOP? By Bryan Dean Wright | Fox News

For Dems or Gop? by Alex Seitz-Wald and Benjy Sarlin

The Recap in Rhetoric

Look at the language: the language from Trump, Kavanaugh, and McConnell was about “Democrats,” Democrats,” and “Democrats.” This was never about “The Democrats,” yet the Right has continuously framed it about the so-called “Democrats” for political expediency.

The Recap in Politics

The vote on Saturday was 50 GOP in favor (with the noted absence of proud father Steve Daines), 1 GOP against, and one Democrat in favor. Straight party blindness on both sides.

This process, ever since the announcement of Anthony Kennedy’s decision to take senior status, was always about the (temporary) new Gang of Six: Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and to a lesser extent, Joe Manchin (WV-D), Heidi Heitkamp (ND-D), Joe Donnelly (IN-D). Really it was about the Gang of Four of Susan Collins (ME-R), Lisa Murkowski (AK-R), and Jeff Flake (AZ-R), and Joe Manchin (WV-D). ANd, if you really want to tighten it further, it was always about the two pro-choice Republican women: Susan Collins (ME-R) and Lisa Murkowski (AK-R).

Negative Societal Effects (and hopefully a few positive societal effects as well)

The neotribalism of politics continues… tell me, how many Republicans do you know who believe the accusations against Brett Kavanaugh, or think his apparent perjury regarding alcohol? How many Democrats do you know who believe Brett Kavanaugh is innocent of all the allegations against him and is a victim of partisan games and revenge tactics? Exactly…

Then there is the racial or social status aspect to the debate; if students of all-male Catholic prep schools are just kids and, “boys will be boys” then why do we charge young minority children -or any children- as adults for crimes those children commit?

Then there is the gender aspect of the debate. Honestly, one of the more reassuring details (though to many it seems like a possible hypocritical detail) is that Brett Kavanaugh is the father of two young girls, Liza and Margaret Kavanaugh.

While this is unfair, I really have trouble listening to defenses of Kavanaugh by anyone who doesn’t have daughters, especially men without daughters. As my good friend Dana, oh, let’s call her DKD. DKD, a conservative woman with a daughter and a son said to me recently, “As a mother, it scares the s*** out of me that any girl can come forward and make an accusation like that that makes a boy guilty before proven innocent.”

That’s a real concern. How do we protect the women in our lives from predatory males, how do we educate our boys not be predatory males, how do we encourage women who are assaulted to speak up, while at the same time, protect males from fraudulent allegations? My greatest hope was so eloquently written and spoke by Monica Hesse of the Washington Post. 

I don’t have the answer to all those questions, but those are the questions we should all be asking right now, regardless of political ideology. And those questions must be asked collectively, or the questions become a reflection of neotribalistic bias, in this case, gender bias or at least gender preference. [Off the top of my head, the only issue of similar complexity, in my opinion, is the question of male paternity rights in the face of a woman’s right to terminate a pregnancy.]

[DKD also asked rhetorically: “As an employer, do I not hire women because it may be ‘risky’ and expose the business to more liability?” But that’s another discussion for another podcast.]

What are we to believe? Who are we to believe?

We will never know the truth about the sexual allegations against Brett Kavanaugh. And it will take a career on the Supreme Court to completely understand his ideology. As I concluded in the July Op-Ed, “Who is the real Brett Kavanaugh? We’ll just have to wait until he’s been confirmed and begins his tenure. Ultimately, we won’t really know until he’s been on the court for 30 years — like his old boss, Anthony Kennedy.

 

The Perjury of Brett Kavanaugh