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No Surprises for Brett Kavanaugh

September 19, 2018

Uncategorized

Michael Geiger

No Surprises for Brett Kavanaugh

First, a disclaimer. I write this article a few days before the initially scheduled Senate Committee vote on US Supreme Court Nominee Brett Kavanaugh. The nomination has been thrown into turmoil over the past few days. I do not know whether Kavanaugh will be confirmed, whether he will withdraw his nomination, whether his nomination will be withdrawn, or whether a complete circus sideshow will unfold in the Senate. I offer no opinion on the merits of Kavanaugh’s nomination. I am merely amazed by the politics surrounding these developments and write on issues related to political games being played to decide Kavanaugh’s future and Kavanaugh’s own (ironic) role in setting the stage for his own potential downfall.

Something funny happened on the way to the coronation. Supreme Court Nominee, Brett Kavanaugh, on track for Senate confirmation one week before the scheduled Senate Committee vote, had survived the Senate hearing process and emerged relatively unscathed. He dutifully avoided answering questions as have all nominees since Robert Bork. Kavanaugh well understood the political gauntlet he had to run and played the game perfectly. At worst, he appeared set for Senate confirmation along partisan lines.

But wait, in a Perry Mason “aha” moment, after the hearings and before any vote, allegations of physical sexual abuse from Kavanaugh’s past rise up to take center stage. The allegations are more than 35 years old and involve alleged actions by Kavanaugh while a 17 year old high school student. The allegations are quite serious in nature. As a consequence, events continue to unfold in real time with the nomination potentially in jeopardy and uncertainty all around. The only sure thing is that political maneuvering by all will be on steroids over the next few days, or more.

I have been fascinated by the politics of Supreme Court appointments since Robert Bork’s nomination in the 1980s. Judge Bork was the last nominee to actually provide his views and opinions on certain matters in response to Senate inquiries. He was torched in the nomination process and defeated by Senate vote. In response, every nominee since Bork, regardless of political leanings or views on the law, responds with one of the following to nomination process questions: “I respect precedent of the Supreme Court and recognize it as the law of the land.”; “I believe in the Rule of Law.”; and “Each case must be addressed on its own merits, I cannot speculate.”. We learn nothing with such general statements.

As a result, the Senate confirmation process for Supreme Court nominees has become an event for Senators to grandstand, knowing that the nominee is trained to avoid the questions. The nominee is compelled to play this political game with no new information learned directly from the nominee. The only enlightening information appears to be from the nominee’s past writings and activities. There may be judicial opinions, law review articles, and other publications which can be dissected to determine actual views. Previous positions and jobs provide insight into the person as well. Senators, both in support of and opposed to a nominee, will place a spin on these data points to score political points in the process. The nominee must be careful to avoid any of these political pitfalls.

Of all recent nominees, Kavanaugh appeared the most knowledgeable of the politics involved in any Senate confirmation process. Indeed, his entire professional career has tracked toward this moment. Kavanaugh graduated from an Ivy League law school, clerked for a Supreme Court Justice, served as prosecutor and even with Special Prosecutor Kenneth Starr seeking to impeach President Bill Clinton, served as part of the legal team representing George W. Bush in Gore v. Bush, served in the Bush administration, and has been a federal judge. Since graduating law school in 1990, Kavanaugh has been a “Washington Insider” not with a front row seat for the extreme politics, but as an actor on the stage itself. He has been part of the politics.

The reward Kavanaugh sought was provided with the recent nomination to fill Justice Kennedy’s seat on the Supreme Court. The Senate hearings concluded. The parade of character witnesses served him well. All appeared in place with a little work to be done to secure the votes of a few key Senators. Enter college professor, Christine Blasey Ford. Professor Blasey Ford alleges sexual abuse by Kavanaugh while they both were in high school in the 1980s. Let’s be clear. IF TRUE, such events are horrifying at any time. IF TRUE, Kavanaugh would have lied with his denials of the events. IF TRUE, such matters would be fatal politically for Kavanaugh in the midst of the #MeToo Movement, weeks before the midterm elections, and while a record number of women seek political office.

Within 48 hours of this revelation, pushed by political supporters of Kavanaugh, the news cycle turned from “Are the allegations true?” to “Is it fair to dredge up 35 year old allegations?” In the abstract, perhaps there exists legitimate reason to debate whether new allegations of conduct from decades ago constitute fair game for consideration. After all, the allegations have not previously been raised even when Kavanaugh held very public and prominent positions. The allegations were presented a few weeks ago to a Senator who did not disclose them until this late stage. The timing of the disclosure appears to be strategically calculated to place maximum political pressure on Senators to turn on Kavanaugh or force withdrawal of the nomination.

For Kavanaugh himself, however, the response undoubtably is that this gamesmanship involving such serious allegations, and how it plays out, remains entirely fair in his own nomination process.

Recall that Kavanaugh served on Kenneth Starr’s legal team to investigate and pursue President Bill Clinton regarding perjury for the Monica Lewinsky affair. Kavanaugh was among those who advocated that prior alleged inappropriate actions and relationships of Clinton were relevant to the investigation, even where the allegations involved decades old actions. Kavanaugh also argued that all specifics of the affair between Clinton and Lewinsky be explored to make Clinton’s “pattern of revolting behavior clear — piece by painful piece.” Kavanaugh continued: “[t]he interests of the Office of the President would be best served by our gathering the full facts regarding the actions of this President so that Congress can decide whether the interests of the Presidency would best be served by having a new President. More to the point: Aren’t we failing to fulfill our duty to the American people if we willingly “conspire” with the President in an effort to conceal the true nature of his acts?”

Kavanaugh may now confront the type of very personal, embarrassing inquiries he advocated. Kavanaugh advanced that every graphic detail of the Clinton-Lewinsky relationship be explored including the number of times they engaged in activities, the precise nature and type of activities, the locations of the encounters, etc. According to Kavanaugh, Congress and the American people had to understand these details in order to render judgment about Clinton. Welcome to the hot seat Nominee Kavanaugh where your personal life may unfold “piece by painful piece”.

Kavanaugh argued that the Presidency itself demanded that these inquiries be made. We all need to have faith in the integrity of the office itself. That thinking applies even more so to uphold the integrity and faith in the Supreme Court. There are no term limits or elections for Supreme Court Justices, just lifetime appointments. What follows is that a complete vetting of Kavanaugh’s alleged physical sexual abuse is demanded in order to protect the integrity of the Supreme Court itself. Kavanaugh himself demands no less.

Kavanaugh set the standard to judge others in these circumstances. To be plain, he sought to solicit explicit details of sexual encounters, in part, to embarrass Clinton so that the President “(i) resigns or (ii) confesses perjury and issues a public apology to [Kenneth Starr].” Some Senators, politically motivated, may now seek the details of Kavanaugh’s past actions to embarrass the nominee.

As a career Washington Insider, Kavanaugh consistently used the politics of the day to achieve his goals. He has used the political machinery masterfully in order to advance from prosecutor to administration official to federal judge. Now that he can almost grasp his ultimate goal of becoming a Supreme Court Justice, the same political machinery may turn on him. The one person who had to see this coming was Brett Kavanaugh.

Again, I offer no judgment about Nominee Kavanaugh. I recognize the “fairness” arguments being raised about last-minute, emotionally charged allegations. I understand the points about relevance of issues from decades ago. In this circumstance, we need not address such arguments or debate the merits as Nominee Kavanaugh himself set the bar for any such investigation and inquiry. He has deemed all such matters completely relevant. Simply apply the standard which Kavanaugh advocated.

Nominee Kavanaugh may squeak through the confirmation process as did Justice Clarence Thomas (52-48 vote). Kavanaugh may withdraw his nomination. I know not. But I do know that Kavanaugh will now be subject to political gamesmanship, the likes of which he has known and engaged in since 1990. Now that is fair.

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