So Brett Kavanaugh is almost certainly going to be the next associate justice on the Supreme Court. Are we helpless in the face of this?
I have little faith that Susan Collins (R-ME), much less Lisa Murkowski (R-AK) or any other Republican senator will vote against Kavanaugh. Even if two of them do bolt, there’s no guarantee that Democrats like Joe Manchin (D-WV), Heidi Heitkamp (D-ND), or Joe Donnelly (D-IN) won’t vote to confirm him, as they all did for Neil Gorsuch. Those of us not in those states really can’t do much about their votes in any case.
But there is something we can do.
We can, all of us, in ways great and small, make sure that the story of Brett Kavanaugh focuses not on him, but on the circumstances of his appointment. The reality is that, as loathsome as I find Kavanaugh’s opinions, they are mostly within the spectrum of US political discourse. Yes, he’s been correctly cast as a partisan judge, but so was Antonin Scalia, and, really, what other kind of judge is Donald Trump likely to appoint? Being opposed to Roe v Wade, Obamacare, and just about every environmental regulation he can find does not disqualify him from the Court.
But here’s what does: Kavanaugh believes that a sitting president should be exempt from both civil and criminal litigation. If we want to have some fun with Kavanaugh, we can ask how he squares that with having worked with Ken Starr investigating Bill Clinton for everything that has ever happened in Washington short of assassinating Abraham Lincoln.
But more seriously, this position amplifies the already troublesome conflict of interest that is so clearly manifest in a president choosing a nominee for the highest court in the land when he himself is under multiple investigations that are almost certain to result in questions that court will have to decide.
In yet another demonstration of Trump’s hubris and impunity, he selected the judge who broadcast that he will, inter alia, oppose any charge even being considered against the most corrupt president in the history of the United States. Make mention of this whenever you can: put it in your tweets, your Facebook posts, your Instagram memes. Put it in letters to the editor, on signs at demonstrations, on bumper stickers and buttons.
Under these circumstances, Trump should not even be making this pick, but of course, that was inevitable. And maybe the Senate will not vote to confirm him. Certainly people in the states with potentially swinging votes should be active in trying to knock Kavanaugh down. The longer this whole process lasts, the more hope there is.
But the blatant selection of a man who would, under any circumstances, protect Trump from any crime he might commit is a clear subversion of democracy and of whatever institutions are still left for us to have any hope in (we’re past faith or confidence, I’m afraid). So talk, talk, TALK. On television or the radio, if you can get there, on YouTube if you want. In the coffee shop, at the community gathering. Keep talking about it.
It’s a clear case to make. Brett Kavanaugh deciding on any question involving Trump has been rendered illegitimate by his own statements. No, it won’t stop Kavanaugh from reaching the bench. But it could create a political atmosphere that changes the calculus for Congress. It could mobilize a lot more centrists, independents and alienated Republicans. Because this is not about policy, even crucially important ones like a woman’s right to choose, every American’s right to health care, and the whole world’s right not to die for the sake of corporate profits. This is about whether we are going to allow the rule of law to be subject to the whims of a megalomaniac. It may not be more important than those policy issues (or it may be–that’s another debate worth having), but it is the one that can lead to some positive results in the wake of the horror that Trump continues to inflict on this country.