Brett Kavanaugh’s defiance brings echoes of Trump-style combat
WASHINGTON — President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode.
Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond.
It remains to be seen whether Brett Kavanaugh’s indignant defense against accusations that he assaulted a teenage girl more than 35 years ago will rescue his nomination in a closely divided Senate.
But Kavanaugh’s performance certainly gives fuel to critics who view the Supreme Court as a partisan tool, now being reshaped by the most divisive president in recent memory. In sticking with Kavanaugh, who rudely shouted at Democratic senators during his hearing Thursday and broke down with emotion multiple times, Trump and Senate leadership appear less concerned with judicial temperament and neutrality than they do with scoring a conservative win.
“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations.
“It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”
Until last week, Kavanaugh and his defenders had downplayed his previous, highly partisan roles as a lawyer with the Ken Starr investigation of Bill Clinton and his service in the George W. Bush White House. Instead, they pointed to his solid legal scholarship, popularity within the legal community, and record as a judge on the US Court of Appeals for the D.C. Circuit since 2006.
But, just a couple hours after Christine Blasey Ford told a rapt Senate Judiciary Committee that he had assaulted her, Kavanaugh on Thursday delivered a markedly heated rebuttal. He interrupted female senators. He dodged questions about old high school yearbook entries loaded with innuendo about sexual conquests. Denying the accusations of sexual misconduct against him as fantasies, he angrily reframed the allegations as concocted by his enemies, as just so much Washington score-settling.
In a remark that undoubtedly thrilled the president who nominated him, Kavanaugh specifically said allies of the Clintons were responsible for a strategy meant to destroy him and his family.
“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 told the committee, his voice raised and dripping with anger. “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.’’
It was an unprecedented, over-the-top appearance. Indeed, Trump could not have chosen a more fitting vessel to introduce his in-your-face brand of partisanship to the Supreme Court.
“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school.
“The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.
He added that it will make the court a “more difficult place” that’s far less respected. “The court can only take so many hits,” he said, naming the Clarence Thomas hearings and the controversial Bush v. Gore decision as examples of what liberals see as two blemishes on the institution. “This will be a third strike,” Tribe said.
Many Kavanaugh supporters noted that he was under particular stress due to the personal nature of the allegations, and merely exhibited a natural desire to punch back.
“It’s the height of hypocrisy to smear him and then say he can’t call out his critics in defending himself,” said Brian Baker, the president of 45Committee, a political nonprofit supporting his confirmation.
Baker said that Democrats have long tried to paint Kavanaugh as overly partisan, going back to his initial nomination to the federal appeals bench in 2003, three years before he finally made it onto the D.C. Circuit court.
“He is a respected appeals court judge who has written over 300 opinions that are thorough, fair, and demonstrate the finest temperament and integrity any judge could have,” Baker said. “Lost in all the drama of the unusual hearing over the decades-old alleged conduct is the fact that Judge Kavanaugh is perhaps one of the most qualified judges ever nominated to the court.”
The GOP’s determination to “plow through’’ the sexual assault allegations and install Kavanaugh, in the phrase used by majority leader Mitch McConnell, adds a dimension beyond partisanship. It is inflaming America’s cultural divides in a way that critics assert will further erode Americans’ confidence in the court. Feminist scholars say there’s a broader concern, regardless of whether Kavanaugh gets on the court: the future of the #MeToo movement.
The notion that a woman could testify credibly, and tell her excruciating story, but still seemingly fail to persuade the Judiciary Committee, demonstrates how little progress woman have made toward equality, said Naomi Alderman, a prominent feminist and author of “The Power,” a novel that explores the many ways in which women are repressed.
“Every teenage boy is getting the message that what you do in high school doesn’t count,” Alderman said. “A lot of women are watching this Kavanaugh nomination and wondering: ‘What are we supposed to do now? . . . It confirms what we knew already: that women’s testimony counts for [expletive]. ”
The movement has inspired women across the world to share their stories of sexual assault, and sparked a national reckoning that such assaults are far more widespread than was understood.
Of course, Kavanaugh’s confirmation remains uncertain. The Senate Judiciary Committee on Friday voted along party lines to advance his nomination to the Senate floor. But a bloc of undecided senators, led by Jeff Flake of Arizona, were successful in delaying the full Senate vote for one week to give the FBI a chance to investigate the claims that have been made against Kavanaugh.
It’s a move that the country’s legal establishment wanted.
The American Bar Association asked for the FBI investigation after Thursday’s hearing. Rushing the confirmation without an investigation, it said, would erode public confidence in the court. “It must remain an institution that will reliably follow the law and not politics,’’ the ABA’s letter said.
The dean of Yale Law School, Kavanaugh’s alma mater, also called for an independent probe. “Proceeding with the confirmation process without further investigation is not in the best interest of the court or our profession,” said Yale Dean Heather Gerken.
Kavanaugh’s hearing was notable in part because he apparently made a choice that few justices before him have: to come out swinging.
“The style, in many ways, is the substance,” said Benjamin Barton, a law professor at the University of Tennessee. “The base that Trump appeals to, and that Kavanaugh was trying to appeal to, really, really want their people to fight. They want to see an aggressive performance.”
To some, the sharp-edged appearance was an outgrowth of a change in Senate rules that made it less likely Supreme Court nominees would need to appeal to a broad, bipartisan majority of lawmakers.
The Republicans eliminated the filibuster for Supreme Court nominations in April 2017 to confirm Justice Neil Gorsuch, which means they now need only a simple majority to approve justices for the high court. Before the invocation of the so-called nuclear option, Supreme Court justices needed 60 votes to move forward. (Democrats set the stage for lowering the vote threshold in November 2013 by eliminating the filibuster for other federal judges.)
Trump campaigned on a pledge to appoint deeply conservative justices, and his nominees have helped him retain a base of religious and hard-right voters despite a rocky presidency.
“The Supreme Court, long term, has been always somewhat of a political body, that’s the nature of the Supreme Court in the United States, but it’s been unusual to have it be so starkly partisan and it’s been unusual to use a confirmation to stoke the flames of the base, and that’s on both sides I think,” Barton said. He added, “The trend where people consider the Supreme Court to be a political body, more than a judicial body, will continue.”
The display of partisanship will cause problems down the road if Kavanaugh is confirmed: Progressive and social groups that come before the court will regularly call for his recusal, said Dennis Burke, a former lawyer on the Senate Judiciary Committee.
“They’re going to look at Kavanaugh and say he already made up his mind,” said Burke. “They’re going to look at him and say, ‘He’s never going to give us a fair shake.’ ”