HOW WE ALL CAME TO BE AT THE KAVANAUGH AND FORD REUNION

Last week (Sept. 27th), the country watched a fascinating confrontation between Supreme Court nominee Brett Kavanaugh and Dr. Christine Brasey Ford, a California psychology professor who came forward to accuse the distinguished circuit court judge of a sexually motivated, alcohol fueled, assault when he was seventeen and she, fifteen. Her obvious discomfort (she said she was terrified), her querulous very girlish voice, her obvious desire to be helpful, made her a compelling witness. Judge Kavanaugh, afterward, before the Committee continued his denials with anger and tears. He lashed out at what he said was a liberal Democratic conspiracy designed to get revenge for his enthusiastic role in the 1997 effort to impeach Bill Clinton.

Candidates for the Supreme Court have always attempted to assure questioning Senators that they have risen above petty politics. Being neutral interpreters of the Constitution is clearly an ideal but, voicing that ideal has been considered necessary for a candidate’s ascension to the Supreme Court. Pushed by Jeff Flake, a Republican Senator from Arizona, the Republican majority on the committee did agree, under the circumstances, to a allow a brief investigation by the FBI into the alleged assault and related matters. The FBI will have less than a week.

An accusation of sexual assault (even if old and unproven), plus a politically partisan temper tantrum, would have sunk any prospective nominee in more ordinary times. But, these are not ordinary times. Having previously rejected any real background investigation of Kavanaugh, the Republican majority did agree to a brief, truncated investigation by the FBI. They remain determined to hold a vote within a week. The support and the rejection of what appears to be a severely flawed candidate now seem to fall almost perfectly along party lines. Why?

In the party line reaction of the members of the Senate Judiciary committee, we are seeing the culmination of a long-time political trend. To understand how serious and experienced Senators have arrived at this pass we can look to the past. As with much of the dysfunction in modern government, this began with the Republican takeover of the House and the Senate engineered by Newt Gingrich back in 1994.

From Franklin Roosevelt’s presidential victory in 1932, up through the early sixties, the Democrats dominated in the House of Representatives. During those years the Republicans had been forced to bargain with the majority Democrats in order to get anything that they wanted done. And, in that more genteel day with a much more moderate Republican Party, things worked relatively well. Living in Washington, often far from their families back home, members of the two parties socialized together “after work”. Their personal relationships made it easy for members of the two parties to develop some common goals and to work together in relative harmony.

Newt Gingrich hated it! An ambitious conservative intellectual Congressman from Georgia (first elected in 1978), Gingrich hated having to play second fiddle to the Democratic majority. Gingrich was determined to finally gain the majority in the House and, as leader of the revolution, himself become Speaker. The Gingrich strategy was to refuse any co-operation with the Democratic majority, and through obstruction, render the House and the Senate unworkable. His hope was, that faced with massive dysfunction, voters would turn to a Republican majority. It worked! They did! Gingrich did become the Speaker!

Since Gingrich became Speaker in 1994, the Congress has been transformed. The Republicans having won through obstruction have become wedded to obstruction as a strategy. So, the old friendships after work have gone the way of the dodo and the passenger pigeon. There are House and Senate dining rooms in the Capitol but they are normally now unoccupied so that the Representatives and Senators will not have to talk to each other (or appear to be collaborating with the enemy). Gingrich is long out of office but the cancer of obstructionism that he and his followers unleashed has metastasized to the Senate, the Presidential administration of the departments, and to the last hopeful bastion of constitutional rationality, the Supreme Court.

So, now we wait! It cannot really matter to nearly every Republican Senator that Brett Kavanaugh really should not be on the Court. Conditioned to obey the leadership (read Mitch McConnell), ordinary members feel they have little choice. As part of the Republican team, they have to vote for Kavanaugh. There are exceptions. Lonely Republican moderates Susan Collins of Maine, Lisa Murkowski of Alaska, and retiring Jeff Flake of Arizona could band together and vote against the nomination. With the effective balance in the Senate at 51/49, the nomination would be defeated. If under enormous pressure, the three moderates approve the nomination, the Democrats who oppose will be functionally bystanders.

There will be political consequences whatever the outcome. Six weeks before the midterm elections, Republicans have a problem. Donald Trump ran for office by cultivating people angry about immigrants, race, and status. Republicans in Congress have done very little for the voters who supported them (they’ve really stopped talking about the tax cuts). Delivering a fifth conservative to the Court is needed to make up for their failures elsewhere. The political problem for the Republican Senators is that by approving Kavanaugh and discounting the very sympathetic Christine Brasey Ford, Republicans virtually guarantee that they will lose even more of the women’s vote than they already have.

What we are really seeing is the end result of the move from the old collaborative system in the American government that existed before Gingrich and his “reformers” changed everything. For the country, Brett Kavanaugh’s elevation to the Supreme Court will be truly consequential. For the Lords of Obstruction, Kavanaugh is just another chess piece in a twenty four year old subversive political strategy. Because of it, not just Democrats, but all of us, are losers!

H.J. Rishel 10/3/2018