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The GOP will rue the Kavanaugh confirmation

© Jose Luis Magana/AFP/Getty Images The Supreme Court.

By David Faris, The Week

On Saturday, the Senate voted narrowly to destroy the Supreme Court of the United States by confirming the profoundly compromised and nakedly partisan Judge Brett Kavanaugh with a 50-48 vote. The drama, such as it was, really ended by mid-afternoon Friday as the critical senator announced in an incredibly long and self-aggrandizing floor speech that she would vote yes, proving that the best way to get what you want in the world is lying shamelessly to Sen. Susan Collins (R-Maine) in an hours-long, private conversation. Kavanaugh joins a court whose swing seat was stolen in 2016, whose popular legitimacy is in tatters, whose every 5-4 decision in the coming years will be regarded as corrupted by a majority of Americans, and whose place in the American political system will never be the same.

The combination of bad faith and procedural manipulation by Senate Majority Leader Mitch McConnell (R-Ky.) and his allies during this process is unlikely to ever be forgotten by any Democrat currently breathing air as a sentient adult. Kavanaugh was a dreadful nominee from the word go, a lifelong partisan hack whose grubby, enthusiastically beer-crusted fingers were all over nearly every embarrassing national spectacle between the late 1990s and his ascension to the D.C. Court of Appeals in 2006, including The Starr Report, Bush v. Gore, and the widespread and illegal use of torture as part of the war on terror. Senate Republicans were so terrified of this sordid, extremely well-documented history that they refused to release the majority of Kavanaugh's long paper trail to the Senate Judiciary Committee, preferring instead an unprecedentedly opaque and rushed process designed to steward him to this very moment of narrow victory.

That was all before Kavanaugh was accused by three women of sexual assault in high school and college. During a nationally televised hearing on Sept. 27, Kavanaugh responded to the moving testimony of his accuser, Christine Blasey Ford, by unleashing a terrifying, puffed-up tirade punctuated with partisan bitterness and loony conspiracy theories, including the idea that the allegations against him were "revenge on behalf of the Clintons." He repeatedly treated Democratic senators with open contempt, and, more importantly, lied over and over again about his past drinking habits, when he learned about his second accuser, and the meaning of entries in his high school yearbook. That performance, and the contempt it showed, all but ensured that Kavanaugh will be hauled before an investigative committee come January if Democrats retake one or both chambers of Congress. It was, in fact, such a disaster that the American Bar Association has now reopened its investigation into Kavanaugh's fitness to be a judge.

Kavanaugh's frothing revenge face was so problematic that it convinced retiring Sen. Jeff Flake (R-Ariz.) to call for an FBI investigation of the allegations against Kavanaugh. But it quickly became obvious that Flake didn't care about the underlying truth value of those allegations — the FBI refused to interview relevant witnesses, including both the accuser and the accused (!), and ignored requests from countless potential witnesses to weigh in. The bureau seemed to be operating under White House-imposed constraints that the White House, in typical Trumpian fashion, denied publicly. McConnell scheduled votes on Kavanaugh while the FBI was still doing its halfhearted work, which Senate Democrats were given just an hour to review privately in shifts. Judiciary Committee Chair Chuck Grassley (R-Iowa) then had the audacity to call Kavanaugh's confirmation process "the most transparent in history."

Let's take a moment to appreciate the full scale of Flake's cowardice over the past two years. He has sucked up 100 times the media oxygen as his fellow moderate Lisa Murkowski, giving speeches on the Senate floor, penning a vanity book, and then not once lifting his finger to actually stop what President Trump and his allies are doing to this country. With his time in the Senate nearing an end, Flake hasn't cast a single significant vote against President Trump's agenda. Instead, he seems content to enjoy the reputation of a maverick without actually being one, a title that Murkowski alone can now genuinely claim among elected national Republicans.

The Alaska senator proved over the past few days that her beliefs were more than just grandstanding. Speaking to reporters after casting her vote against cloture on Friday, Murkowski also seemed concerned about the Court's legitimacy crisis, saying, "I also think that we're at a place where we need to be thinking again about the credibility and the integrity of our institutions." Seemingly alone among elected Republicans, Murkowski both understands and is willing to do something about the damage that McConnell and his allies are perpetrating against American democracy in their quest to conquer the federal court system.

The same cannot be said for Collins, the onetime darling of the resistance after her vote against the GOP's health-care law just last summer. It's hard to make sense of her delusional speech before the Senate on Friday, except as a plea to the 2020 Maine Republican primary electorate not to throw her overboard. Like so many elected Republicans, Collins is likely to find that her alliance with Trump won't be in her long-term self-interest, once the economy enters an inevitable recession or more indisputable evidence of the president's criminality emerges. But her speech was particularly odious given its transparently fake premise — that somehow her vote to confirm Kavanaugh would help heal wounds, or as she put it in closing, "to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions and so that public confidence in our judiciary and our highest court is restored." The reality, of course, will be quite the opposite, and she may very well be remembered by historians as the pro-choice Republican woman who cast the decisive vote gutting Roe v. Wade. She may also not be a senator for much longer. Furious critics raised over $500,000 to defeat her in 2020 just during the course of her speech, creating a resistance fund that now totals over $3 million.

And as has been clear since the beginning of this squalid episode of American history, Sen. Joe Manchin (D-W.Va.) ultimately voted with whatever the majority was going to be. Had Collins or Flake also been willing to cast a no vote, Manchin might have stood with his Democratic colleagues and brought down the Kavanaugh nomination. But unlike his fellow endangered red-state Democrats Claire McCaskill (Mo.), Heidi Heitkamp (N.D.), and Joe Donnelly (Ind.), he either has no principles or was unwilling to stand on them. His vote is a healthy reminder to Democrats to add one to whatever number they think they need to pass meaningful laws the next time they hold the Senate.

And then there's Minority Leader Chuck Schumer (N.Y.), out there talking about how his party might someday restore supermajority requirements for Supreme Court nominees. He's like FDR waking up the day after Pearl Harbor and announcing that he's going to get to work restoring the 1922 Washington Naval Treaty. What planet is this guy living on that he thinks the shape of American politics is going to be more amenable to compromise in 2021 than it is today? How much longer can Democrats afford to have someone this clueless in charge of their Senate caucus?

It's worse than naivete at this point — he is just completely and totally disconnected from the reality of what is happening in Washington, D.C. Schumer is a man bereft of a policy or political vision for his party and its future, and he must be replaced if Democrats are to achieve anything once they retake power. But this confirmation can't be laid at his feet — Republicans have made it perfectly clear over the past two months that Kavanaugh was getting confirmed no matter the cost to the institution of the Supreme Court or the future of the Senate. They always had the votes, and that's not Schumer's fault — that shame belongs to the voters who either sat out the 2014 and 2016 elections, or who were deprived of their vote by 20 years of Republican voter suppression.

In the weeks leading up to this day, analysts speculated that voting Kavanaugh down would help Republicans, and confirming him might help the Democrats. We'll soon know the answer to that short-term political question. But in the long run, the GOP will regret jamming Kavanaugh through like this, just as they will eventually rue their decision to steal Merrick Garland's Supreme Court seat. Conservative judicial radicals who have spent four decades plotting their takeover over the Court will eventually realize that instead of conquering the Court they destroyed it by inviting an even more comprehensive Democratic escalation.

Indeed, McConnell's hardball tactics and the Trump-era GOP's open alliance with misogynist creeps and white nationalists have achieved the seemingly impossible — they have obliterated the mythology of the Supreme Court as an ally of progress in the eyes of Democrats. Ripping away that mask opens the door to much more radical solutions, including court packing, the addition of new Democratic-leaning states to the union, and a systematic new voting rights act. The key to all of these proposals is for Democrats to take back power between now and 2021. And by confirming the most unpopular, unqualified, and unfit Court nominee in modern history on the eve of the midterm elections, Republicans may have just made that job substantially easier for Democrats. That will be cold comfort to the millions of sexual assault victims who have been pointlessly retraumatized over the past few weeks by the GOP's maniacal zeal to get Kavanaugh confirmed.

But despair often turns to rage, hopelessness into a thirst for vengeance, and a small spark into a raging inferno. Republicans just gave Democrats lighter fluid, a match, and a reason not to care about how many blocks of this democracy get burned down.

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