Brett Kavanaugh is the perfect emblem of the unholy marriage between the Republican Party and Donald Trump. That's the inescapable conclusion after watching four days of confirmation hearings for Trump's second Supreme Court nominee before the Senate Judiciary Committee.
Kavanaugh's aw-shucks, basketball-dad demeanor should not fool anyone. He represents the consummation of the implicit deal struck in 2016 when Trump became the Republican nominee, in which the party agreed to cover for Trump's seemingly endless stream of potential crimes and scandals while, in turn, Trump would rubber-stamp the entire hard-right agenda on everything from taxes to deregulation to guns to human rights.
There's been an ongoing debate in Democratic circles for the past few months, with an eye toward the midterm elections. Its central question is whether or not to focus political efforts and messaging on substantive issues like health care and the economy, or on Trump's obvious corruption and the fact that multiple people linked to his campaign are now convicted criminals and that the president himself was fingered as an unindicted co-conspirator when his former lawyer, Michael Cohen, pled guilty to campaign finance fraud.
But what the Kavanaugh hearings demonstrated is that the two issues cannot be easily separated. As Democrats argued over four days, in a carefully laid-out case, Kavanaugh is being sent to the Supreme Court both to impose a hard-right agenda that the majority of the country rejects and also to do whatever he can to protect Trump from the consequences of his potential crimes or unethical conduct.
"There is much to fear from an unchecked president who is inclined to abuse his powers. That is a fact I can attest to from personal experience," said John Dean, the legendary former White House counsel who "flipped" on Richard Nixon and became a key witness during the Watergate scandal, in his submitted testimony. "In short, under Judge Kavanaugh’s view, even if a president shot someone in cold blood on Fifth Avenue, that president could not be prosecuted while in office."
Dean also noted that "the contemporary Republican-controlled Congress" has "shown no interest in oversight of a Republican president," which makes it even more dangerous to give Kavanaugh a seat, which would lead to a Supreme Court "majority that will find it increasingly difficult to discover any presidential actions which they do not approve."
For most of the hearing, Democrats managed a balancing act between highlighting the threat that Kavanaugh posed on a variety of economic and social justice issues. For the third panel convened on Friday, three out of four witnesses brought by Democrats were teenagers, and all three were there to testify that they feared Kavanaugh's views on gun control, health care and the environment posed literal threats to their health and their lives. There was also a strong focus throughout the hearings on abortion rights, gun safety and campaign finance issues, backed up by a heavy activist presence, holding rallies outside the building and noisily protesting and getting arrested inside the hearing room.
At times, testimony and questioning on these issues got extremely emotional. Rochelle Garza, the attorney who represented a teenage immigrant whose abortion was nearly prevented by Kavanaugh, told a harrowing story of her client's repeated abuses at the hands of immigration authorities. High school student Aalayah Eastmond described shielding herself with a dead body and playing dead to avoid the shooter who terrorized her high school in Parkland, Florida, in February. On Thursday night, Sen. Kamala Harris, D-Calif., repeatedly challenged Kavanaugh to drop the legalese about "unenumerated rights" and confront what it really means for the government to deny someone's right to control their body, to vote or to marry the person they love.
But interspersed with testimony about these longstanding issues in American society were relatively new and frightening questions about the future, including the real possibility that President Trump has committed serious crimes and will now have chosen two of the judges who could vote to shield him from legal consequences for doing so. Despite the forced conviviality and practiced decorum of much of the hearing, this sense that Republicans were rushing to install a judge who can protect Trump from accountability infused the hearings with a sense of anger and dread that occasionally caused senators on both sides of the aisle to drop the act and express real anger.
There were repeated efforts by multiple Democrats to get Kavanaugh to commit to recusing himself from future cases involving whether Trump should be constrained by the laws that govern ordinary citizens. He ably, and with no small amount of smarm, deflected every one of those efforts, leaning heavily on clichés about judicial independence.
Sen. Cory Booker, D-N.J., was particularly dogged, pointing out on Thursday that Trump has demanded loyalty tests of his appointees and saying there's "credible suspicion" that "the system is somehow rigged and the president is putting somebody up just to protect him from a criminal investigation." In an effort to break Kavanaugh's reliance on legalistic arguments, Booker then bluntly asked Kavanaugh if he had respect for Trump or thought Trump had good character.
Kavanaugh responded by saying, "You don’t hear sitting judges commenting on political [matters]."
During the hearings, Harris, backed up by Sen. Richard Blumenthal, D-Conn., asked a series of specific questions that seemed to hint that Kavanaugh had been in communication with a law firm that is closely tied to Trump's legal team as it dealing with the investigation into the 2016 campaign being conducted by special counsel Robert Mueller. As of this writing, nothing seems to have come from that beyond an admission by Kavanaugh that he is friendly with a lawyer from that firm and a denial that he had discussed the Mueller investigation with that lawyer or anyone else at the firm.
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With the cloud of scandal hanging over this confirmation hearing, it's not a surprise that Democrats used the last panel of the last day — in an echo of closing arguments at court — to highlight the concerns that Trump expects Kavanaugh to cover for him and that Kavanaugh intends to comply. Seating Dean sent that message even before the Watergate turncoat offered his testimony, which was fiery in language if not in tone. Democrats also brought in constitutional scholar Peter Shane, a law professor at Ohio State, who didn't hold back in his read of the situation.
"At this moment, no issue before you is more important than Judge Kavanaugh's approach to constitutional questions of executive power and presidential accountability," Shane said. He noted that Trump is under investigation for crimes and has "expressed contempt for democratic institutions," and that, with Kavanaugh on the high court, Trump could get away with it all.
Unfortunately, Republicans on the Senate Judiciary Committee — and in Congress in general — seem indifferent at best to the possibility that they're putting in motion a series of events that could shield a criminal president from any accountability to the law and permit him to do basically whatever he wants. Indeed, why should they care? As the rest of the hearings showed, Republicans are in a huge hurry to install a Supreme Court majority that will end most regulations on businesses while putting the bodies of American woman under state surveillance. With that prospect ahead, what's a little criminal corruption?
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