Let’s get this out of the way first: Of course the networks made the right decision in giving President Trump airtime to deliver yet another pitch for his border wall. Yes, he lied, as we all knew he would. Yes, he engaged in fear-mongering, which is to say that he opened his mouth and spoke. But the notion that television executives should have said no to a president making his first request for a prime-time Oval Office address in the midst of the shutdown crisis (a crisis of his own making, but still) is hard to take seriously.
A few very brief thoughts about Elizabeth Warren and whether she’s “likable enough” (to recycle an unfortunate old quote from Barack Obama) to be elected president — the subject of a front-page story in today’s Boston Globe as well as multiple other outlets.
First, yes, of course there’s an element of sexism to it, as there was when the same questions were raised over and over about Hillary Clinton. But let’s not get carried away — it’s not just sexism. Republicans used the likability factor like a sledgehammer against Al Gore and John Kerry, and it was effective. Their opponent, George W. Bush, was regularly described as someone you’d rather have a beer with, which always struck me as pretty odd given that Bush was an alcoholic who had given up drinking.
Second, in Warren’s case, “likability” is shorthand for something real — a lack of political adroitness despite her substantive strengths and despite being, as best as I can determine, genuinely likable. The whole Native American thing is ludicrous, and it seems as though she should have been able to put it behind her years ago when Scott Brown and the Boston Herald first tried to make an issue of it. Yet it’s still here, and it makes you think she should have handled it differently. Certainly the DNA test didn’t help.
Third, there’s something to the idea that she let her moment slip away. The news and political cycles are so accelerated now that 2016 may have represented her best chance. That has nothing to do with likability. The fact that Beto O’Rourke may be a serious candidate seems silly unless you view it in that context.
Finally, Warren’s likability is a phony issue because it’s about the pundits, not the voters. If she wins the nomination and is ultimately elected president, there’s the answer to your question: she’s likable enough.
It seems transparently obvious that Romney believes Trump won’t survive the Mueller investigation and that he’ll be in the best position to pick up the pieces. Add to that the fact that Utah Republicans can’t stand Trump, and this is a no-risk move by the Mittster — which is to say the only kind of move he ever makes.
President Trump, whose multifarious assaults on basic decency include mocking a disabled reporter in front of a crowd of hooting supporters, may have hit yet another new low. Neomi Rao, Trump’s choice to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals, is an enthusiastic supporter of dwarf-tossing. Rao’s peculiar obsession with the practice of throwing short-statured people against Velcro walls was reported late last week by Stephanie Mencimer in Mother Jones.
As you might imagine, Rao, a veteran right-wing activist currently serving in the Trump administration, does not claim to take part in this humiliating and dangerous practice. Rather, she has argued on several occasions that dwarf-tossing should be a matter of choice, writing that it should be up to the tossee whether picking up a few bucks in some shady barroom is worth the risk to his health and his self-respect.
Rao explained her views several years ago at The Volokh Conspiracy, a libertarian legal blog, in which she criticized a ruling in France against a little person who wanted to take part in dwarf-tossing. Rao wrote that it “demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.” She added:
The issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy. Rather these examples demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice, but rather represents a particular moral view of what dignity requires. These laws do not purport to maximize individual freedom, but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).
The individual-rights argument may seem appealing. But it ignores all kinds of activities that society has decided to ban or regulate in order to protect not just the person taking part in those activities but also the rest of us — prostitution, as Rao notes, as well as drug use, cockfighting, underage drinking, casino gambling (until recently), practicing medicine without a license, and driving on the wrong side of the street. So it is with dwarf-tossing, which not only puts the person being tossed at risk of injury because of the spinal abnormalities present in most forms of dwarfism but also places others with dwarfism in harm’s way by normalizing a practice that should be considered beyond the pale.
I have skin in this game, though I hardly consider it a game. Our daughter, Rebecca, has achondroplasia, the most common type of dwarfism. My 2003 book, “Little People,” examines the culture and history of the dwarfism. Among the people I interviewed was Doyle Harris, a dispatcher at the University of Louisville and a former official with Little People of America, an organization for dwarfs and their families. As I wrote in the book:
Nearly twenty years ago, he [Harris] and some friends were waiting outside a Louisville nightclub. It was right around the time that dwarf-tossing — an Australian import that rears its ugly head wherever drunk, stupid men in their twenties gather — had first come to the attention of the media. “One of these guys came out — he was a little inebriated — and he went, ‘Oh, they’re going to have dwarf-tossing tonight. Well, let me practice,'” Harris recalled. “And the next thing I know, the guy literally picks me up and throws me out onto the grass. It was not a good situation. It was very demeaning to me. I was in fairly nice clothes, I was looking to go out, and I’m out in the grass, rolling around, getting grass stains and muddy. It was totally against my will.”
Florida, at one time the locus of dwarf-tossing in the United States, banned the practice in 1989. Incredibly, a state legislator proposed lifting the ban in 2011, dredging up the tiresome freedom-of-choice argument. As Angela Van Etten, a lawyer with dwarfism whose work helped lead to the original ban, wrote in The Huffington Post: “Dwarf tossing appeals to a lower instinct in people and creates a hostile environment in which Little People are disrespected and ridiculed. It legitimizes bully behavior.”
Exactly. Yet we now live in an environment in which bullying is not only condoned but indulged in by the president. In that respect, Neomi Rao seems like the perfect Trump appointment. According to Mother Jones, in addition to her fervor for dwarf-tossing, she holds retrograde views on LGBTQ rights and affirmative action and is an anti-regulation zealot. She should not be confirmed. But who will stop her?
I was puzzled as I watched the returns roll in from Tuesday’s midterm elections. For weeks, the polls had pointed to a solid Democratic win in the House, continued Republican control of the Senate, and a tough slog for rising Democratic stars in Texas, Georgia, and Florida. That’s exactly how it played out. And yet the pundit class was acting as though Hillary Clinton had just lost again.
“This is not a blue wave. This is not a wave knocking out all sorts of Republican incumbents,” said CNN’s Jake Tapper. NBC News’ Chuck Todd agreed: “It is not a blue wave.” Added New York Times columnist Paul Krugman: “Clearly Republicans are doing better than expected after a closing argument based entirely on fear and lies. This is going to be grim.” (Quotes compiled by Alex Shephard of The New Republic and Ryan Saavedra of The Daily Wire.)
Why such gloom over being right all along? I’d attribute it to irrational exuberance followed by the dope slap of cold, harsh reality. Even though the data predicted the outcome pretty accurately, I think a lot of commentators — rightly horrified by the deeply unpopular president’s lies, racist outbursts, and attacks on the media — believed in their heart of hearts that a hidden surge of new Democratic voters would sweep the countryside.
It didn’t happen. Nor should anyone have expected it. And by this morning, commentators appeared to have regained their equilibrium. “Republicans will pitch this as a split decision, because they gain seats in the Senate,” wrote Aaron Blake of The Washington Post. “It’s not; the Senate map was highly favorable to them, meaning that maintaining control of it was expected. Democrats just took over a chamber of Congress, and that’s a big thing for them, period.” Michael Brendan Dougherty put it this way at the conservative (but mostly anti-Trump) National Review:
No one should kid themselves. Republicans may have been more resilient in the Senate and in governor’s mansions than people expected, but it’s a big night for Democrats. Early exit polls show that polarization along the lines of sex is real, and a real problem for Republicans. Republicans have turned off women.
It would have been an even bigger night for Democrats were it not for structural disadvantages that artificially boost the Republican vote. As Washington Post columnist E.J. Dionne pointed out, Democrats won the popular vote in House contests Tuesday by about 9.2 percent — more than Republicans won in their big midterm victories of 1994 (7.1 percent), 2010 (7.2 percent), and 2014 (5.7 percent). The votes are still being counted, but if that 9.2 percent margin could be applied nationally, then Democrats would control the House by a margin of 237 to 201. The actual margin will fall well short of that.
House seats aren’t assigned on the basis of a national vote, of course. But partisan gerrymandering that favors Republicans, coupled by a Democratic electorate that is increasingly concentrated in overwhelmingly blue urban areas, means that Democratic victories invariably fall short of the party’s actual vote total. And that’s not even counting the enormous built-in problems they face in presidential and Senate elections, which I wrote about recently.
Three other quick observations about Tuesday’s returns:
1. Democrats prevailed in the House despite what is often described as the strongest economy in years, something that generally favors the party in power. Perhaps the economy wasn’t as much of an issue as it might have been because Trump is so unpopular. Or maybe it’s because the topline economic numbers mask the continued erosion of wages and widening income inequality. Most likely: both.
2. The most significant win for Democrats may have taken place in Florida, where voters overwhelmingly approved a ballot measure to restore voting rights to 1.2 million ex-felons. Samantha J. Gross reported in the Miami Herald that Florida was only one of three states that permanently banned felons from voting. Given the vast racial disparities in the criminal-justice system, the change should provide a large boost for the Democratic vote in 2020.
3. Two Democratic African-American gubernatorial candidates, Stacey Abrams of Georgia and Andrew Gillum of Florida, appear to have fallen just short of victory. (Abrams, also victimized by voter-suppression efforts, had not yet conceded as of this morning, according to The Atlanta Journal-Constitution.) Both candidates were the subject of over-the-top racist attacks. The Washington Post reported, “Robo-calls in Georgia featured a voice impersonating Oprah Winfrey and calling Abrams ‘a poor man’s Aunt Jemima.’ In Florida, robo-calls mimicked Gillum as jungle sounds and chimpanzee noises were heard in the background.” Nauseating — but also effective with the white racists Republicans needed in order to win.
The most important takeaway from the midterms is that the Trump presidency has been significantly diminished, and that investigations into possible wrongdoing on his part and that of his administration have gotten a new jolt of life. As David A. Graham wrote at The Atlantic, “While it will be all but impossible for Democrats to actually turn any of their priorities into law, House control provides them a position to conduct strict oversight of the Trump administration and to further bog down an already sclerotic presidency.”
The punditocracy’s initial reaction was wrong, but that’s hardly a surprise. If you’re a progressive, a Democrat, or just an appalled critic of the president, imagine what today would be like if Republicans had hung on to the House. Tuesday’s results were good for accountability — and, thus, for the country.
It was an irresistible hook at a moment of horror: Squirrel Hill, the heavily Jewish neighborhood in Pittsburgh where a hate-mongering gunman killed 11 people at the Tree of Life Synagogue on Saturday, was the home of the late Fred Rogers, the otherworldly host of “Mister Rogers’ Neighborhood.”
As Beth Shalom’s executive director told a reporter at the time: “I didn’t have to look — everyone came to me.” The line put me in mind of my favorite of Fred Rogers’ sayings. “When I was a boy and I would see scary things in the news, my mother would say to me, ‘Look for the helpers. You will always find people who are helping.'”
Last summer we saw the Fred Rogers documentary “Won’t You Be My Neighbor?” Rogers was not a major part of my life. I was too old for his original television show, and by the time we had kids the program was fading away. But I’ve thought about Rogers quite a lot since seeing the film and have wondered what this profoundly unhateful, uncynical children’s advocate would say about what is happening to us.
How might things be different if the Pittsburgh shooter had been exposed at the right time in his life to someone as devoted to the emotional development of children as Rogers? Or the conspiracy-minded Florida man who was arrested last week and charged with sending pipe bombs to high-profile liberal and media targets such as the Clintons, U.S. Rep. Maxine Waters, and CNN? Or the racist white Kentucky man who authorities say walked into a supermarket last week and murdered two elderly African-Americans — but only after he tried and failed to enter a black church?
Or — it has to be said — what if someone like Fred Rogers had been able to reach President Trump at a young age?
I find myself feeling more sad than angry. That sadness stems not just from the terrible events that have taken place during the past week but from the certainty that our president has helped stoke the right-wing lunacy that has been unleashed upon us. Trump does not care about the consequences of his words as long as he believes they will advance his own selfish interests.
There has been much speculation in recent days — renewed speculation, that is — as to whether Trump is an anti-Semite, notwithstanding the fact that some members of his own family are Jews. I think that’s the wrong question. So what if, in his heart, he does not harbor anti-Semitic views? What matters is that he is willing to use anti-Semitism when it suits him, just as he is willing to use racism, homophobia, transphobia, Islamophobia, and misogyny. Meanwhile, anti-Semitism is on the rise, according to the Anti-Defamation League.
Rich Lowry, a callow opportunist who passes for a responsible conservative by the low standards of our times, had the temerity to sneeringly ask on Twitter: “What’s even the theory supposed to be that Trump is an anti-Semite?” That brought about a devastating retort from the journalist Mehdi Hasan, who pointed out that Trump has engaged in such dubious behavior as consorting with white nationalists and attacking “globalists,” a euphemism for educated Jews.
1) He ran an ad attacking only 3 Jews 2) He rails against 'globalists' 3) He put Hillary next to a Star of David & cash 4) He told a Jewish crowd: 'You're not going to support me because I don't want your money' 5) He liked a book of Hitler speeches 6) He hires white nationalists https://t.co/QxuOaK6PSo
Much of the Trump-inspired hysteria of the past few weeks can be tied to the president’s exploitation of the so-called caravan of Honduran immigrants who have left their country to escape violence. Never mind that they are in southern Mexico and that few of them have much chance of entering the United States. Trump and his sycophants on Fox News and elsewhere have conflated this into some sort of George Soros-financed (that is to say, Jewish) plot to flood the country with illegal aliens — I am using their term, not mine — so that they can vote for Democrats on Nov. 6. The alleged Pittsburgh shooter specifically cited this bizarre theory in a post on Gab, which has been described as a social platform for anti-Semites. Adam Serwer of The Atlantic explains:
The apparent spark for the worst anti-Semitic massacre in American history was a racist hoax inflamed by a U.S. president seeking to help his party win a midterm election. There is no political gesture, no public statement, and no alteration in rhetoric or behavior that will change this fact. The shooter might have found a different reason to act on a different day. But he chose to act on Saturday, and he apparently chose to act in response to a political fiction that the president himself chose to spread and that his followers chose to amplify.
No doubt Trump is scared. If the Republicans lose one branch of Congress in November, he will finally face the prospect of a serious investigation on Capitol Hill — an investigation that is almost certain to document all manner of wrongdoing. He is willing to say anything to prevent that from happening. As ugly as his rhetoric has been, it is likely to get worse — and damn the consequences. Josh Marshall, for instance, wrote the other day about a new Trump ad that reeks of anti-Semitism.
We have come a long way from Mr. Rogers’ neighborhood. And we are all the worse for it.
Last week I was asked a provocative question. What prompted it was a panel discussion of The New York Times’ 14,000-word exposé of how President Trump built his fortune on the dual foundations of his father’s wealth and of legally dubious tax schemes. The story was such a sensation that the Times printed it twice — once on Oct. 3 and again the following Sunday. Yet it seems to have barely resonated beyond the Times’ core readership.
Why, the panelists were asked, should we care? Thanks to the Trump effect, paid subscriptions are up at mainstream newspapers like the Times and The Washington Post, listenership has grown at NPR, and donations to nonprofit news organizations like ProPublica have increased. Wasn’t that good enough?
I responded that journalists want to do more than reach an audience. They want to have impact. They want to see concrete evidence that great reporting has an effect. That doesn’t mean journalists — good ones, anyway — want to change the outcome of elections or substitute their own judgment for that of the public. But it does mean that when they do important work, they want it to resonate beyond those already inclined to believe them without having it immediately dismissed as #fakenews by those on the other side of the social and cultural divide. Unfortunately, that’s exactly what happens in our current hyperpolarized environment.
I’m not sure what can be done. But New York University journalism professor Jay Rosen, one of our most perceptive media observers, thinks he knows what’s behind much of it: a deliberate blizzard of lying by our president aimed at burying stories beneath an avalanche of falsehoods; a right-wing populist movement in the United States and Europe that dismisses anything coming out of the mainstream press as corrupt and elitist; and the decline of trust in the media, accompanied and exacerbated by the ongoing deterioration of journalism’s business model.
The heart of Rosen’s argument is contained within a recent post at his blog, PressThink:
In the United States the President is leading a hate movement against journalism, and with his core supporters it is succeeding. They reject the product on principle. Their leading source of information about Trump is Trump, which means an authoritarian news system is for them up and running. Before journalists log on in the morning, one third of their potential public is gone. No one knows what to do about it.
Of course, Trump wouldn’t be able to wield this kind of power over the truth if he didn’t have enablers in the media, principally Fox News. But here we are some three and half years since he rode down the escalator and into the center of our political life, and too many journalists still don’t know how to cover him. Not that there are any obvious solutions. But surely the editors at USA Today knew better than to publish his falsehood-filled op-ed piece last week. And mainstream outlets too often engage in coverage that normalizes this most abnormal of presidents.
A large part of what needs to happen, Rosen says, is to acknowledge precisely what Trump is doing. I’m enough of a traditionalist that I have been more comfortable with describing Trump’s “falsehoods” rather than “lies,” mainly because we have no way of crawling inside his head to determine whether he knows the difference. Far too often, though, Trump traffics in false information that has been thoroughly debunked so many times that he has to know better. Through mid-September, he had spoken falsely more than 5,000 times as president. It’s clear that many of those falsehoods are deliberate, and that he lies for a reason. Rosen, in a Twitter thread, explained what Trump is doing:
Flooding the system with too much news, much of it misleading or simply false, not only reduces the weight of any individual story; it has the further effect of keeping opponents in a pop-eyed state of outrage, which in turns shows supporters a hateful image of the other side.
And that is why journalists care not just about reaching their own pre-determined audience but in changing hearts and minds. In decades past, reporters made a difference in how we thought about civil rights, the Vietnam War, and Watergate. Now nothing seems to matter. The Times’ tax story, Rosen wrote in his Twitter thread, “is proving to be simultaneously devastating and harmless, a news condition previously unknown to presidents facing a check-on-power press.” Trump is a historically unpopular president, yet he continues to exert a mesmerizing hold on his base — a base that has proved impervious to facts.
The Times and the Post, in particular, are doing a magnificent job of telling the story of the Trump era. Those two papers have never been more important than they are today. Yet in a fundamental way they have ceased to matter. Democracy dies in darkness. But it might also die in the clear light of day if not enough people care — no matter how much our audience has grown or how many subscriptions we’ve sold.
If something can’t go on forever, then it won’t. And so it is with the current state of our democracy, which awards disproportionate power to an ever-shrinking slice of the electorate. Today the president, the Senate, and the Supreme Court reflect the will of a minority of voters. The majority is left out in the cold. At some point that has to change, even if it’s not at all clear how it’s going to happen.
Now, some of you are already sharpening your sticks and getting ready to poke holes in my argument. We’re not a democracy, you’ll say. We’re a constitutional republic. Well, you’re half-right. Living in a constitutional republic means that our democratic rights are sometimes exercised indirectly, and that there are certain protections that the majority may not take away from us. What it’s not supposed to mean is that some people’s votes counts more than others.
I’ll return to that argument later on. But first, as Kai Ryssdal says, let’s do the numbers.
The executive branch. After what happened in 2016, our undemocratic method of electing the president is well known, widely understood, and, at least among Democrats, widely reviled. The Electoral College is a vestige of the past and, as I’ve written before, an artifact of slavery: it gave slave states a louder voice in presidential elections by counting each slave as three-fifths of a person even though they had no right to vote.
That obscenity is long gone. But voters in small states still have more power than those in large ones. Why? In addition to casting an electoral vote for each House district, every state gets two bonus votes (reflecting its two senators) regardless of size. How unfair is that? In tiny Wyoming, each elector represents about 194,000 residents, whereas in giant California the number is 697,000. It is the equivalent of each Wyoming voter’s ballot being counted 3.6 times while those of California residents are counted only once.
Until George W. Bush won the presidency despite losing the popular vote in 2000, the idea that the winner of the popular vote could lose the presidency seemed like a 19th-century anachronism, conjuring up images of Rutherford B. Hayes, known to his contemporaries as “His Fraudulency.” Then came 2016, when Donald Trump won despite losing the popular vote to Hillary Clinton by the not-insubstantial margin of 2.8 million votes. With more and more Democrats and liberals moving to blue states, the gap may only get worse.
The legislative branch. The anti-democratic nature of Congress is most obvious in the Senate, which is marred by the same small-state bias as the Electoral College. Each state, as we know, elects two senators regardless of size. To use our previous example, California’s Democratic senators, Dianne Feinstein and Kamala Harris, represent more than 39 million people, whereas Wyoming’s two Republican senators, John Barrasso and Mike Enzi, represent just 580,000.
That is an absurd situation, far worse than what prevails in the Electoral College, which at least is partly based on population. One consequence of the large-state/small-state divide is that millions more Americans vote for Democratic Senate candidates than for Republicans. For instance, Dylan Matthews noted in Vox several years ago that the 46 Democratic senators who were seated in 2015 had received 20 million more votes than the 54 Republicans. (The Democratic total included two independents, Bernie Sanders of Vermont and Angus King of Maine, who caucus with the Democrats.)
As with the Electoral College, the two-senators-per-state arrangement was rooted in the need to grant greater power to the slave states in order to bring the union together. Today, given that most small states are Republican and most large states are Democratic, Republicans gain a huge advantage.
House districts, at least, are based on population. But gerrymandering by Republican-controlled governorships and legislatures has had its effect there as well. In 2016, for instance, Republicans won 241 of the 435 total House seats, beating the Democrats by 55.4 percent to 45.5 percent. Nationwide, voters favored Republican House candidates by the much slimmer margin of 49.1 percent to 48 percent. That raises the specter that, even if Democrats had received more votes, Republicans still would have won more House seats.
The judicial branch. With the confirmation of Brett Kavanaugh as the ninth justice, the Supreme Court now includes two members who were appointed by a president who lost the popular vote — that is, President Trump. (George W. Bush appointed Chief Justice John Roberts and Justice Sam Alito only after his 2004 re-election, in which he won both the popular and electoral votes.)
Moreover, both of Trump’s nominees were confirmed by senators who received far fewer votes than the senators who opposed them. Michael Tomasky recently observed in The New York Times that in the case of Trump’s first choice, Neil Gorsuch, the 54 senators who voted to confirm him received 54 million votes whereas the 45 senators who were opposed won more than 73 million. That’s a margin of 58 percent to 42 percent against confirmation. The Kavanaugh confirmation vote broke along similar lines. Indeed, Philip Bump of The Washington Post estimated that the senators who voted to confirm Kavanaugh represented just 44 percent of the population.
In other words, reproductive rights, same-sex marriage, and other liberties are now at risk because of two justices who were appointed by a president who lost the popular vote, and who were were confirmed by senators who received far fewer votes than those who were opposed. Is this any way to run a democracy in the 21st century?
And yes, let’s get back to that democracy-versus-republic argument. What does it mean to live in a constitutional republic rather than a democracy? It means that we don’t make laws directly — we let Congress do it. It means there are certain rights that even a majority can’t take away from us (except through a constitutional amendment), whether it be freedom of speech, the right to bear arms, or the right to a speedy and public trial by jury.
As Harvard Law School professor Lawrence Lessig wrote two years ago, the “we’re a republic” retort favored by defenders of the Electoral College is nonsense. The founders defined a “republic” as a representative democracy rather than a direct democracy, not as a non-democracy. James Madison, Lessig pointed out, said that “in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.” (Lessig, I should add, is the force behind an intriguing idea to reform the Electoral College.) That doesn’t mean the minority gets to rule while the majority gets to shut up. It means the majority exercises its will indirectly rather than directly.
Writing in Philly.com, columnist Will Bunch offers some useful ideas to reform our anti-majoritarian system, ranging from abolishing the Electoral College to ending the two-senators-per-state arrangement.
Bunch goes so far as to compare our current situation to the run-up to the Civil War. “Let’s once again radically fix the way America does its business — this time, before a civil war breaks out,” he writes. That strikes me as hyperbolic, but maybe he’s right. We are facing a crisis of legitimacy We do not have a government of the people or for the people when any — or, as is now the case, all — branches of government exercise power against the wishes of most Americans. Because the status quo can’t be maintained, it won’t be. The only question is how we’ll fix a system that is irredeemably broken.
Recently I proposed to fix our state elections by adopting ranked voter choice, moving the primaries to June, and making them nonpartisan. (You’re welcome.) Today I’m back with the exponentially more difficult task of repairing our broken Supreme Court confirmation process. My plan, I think, is simple and logical. But I’d be the first to concede that it has virtually no chance of happening.
What’s next? Democrats may take over the Senate in the November election, and they’ll be spoiling for a fight. It’s more than possible that they will reinvestigate Kavanaugh and maybe even impeach him. He has given them plenty of reasons to do so. But that’s the road to chaos, and it would lead to an endless cycle of retribution. That cycle has to be stopped, and on terms that recognize what a terrible choice Kavanaugh was while leaving both parties a chance to regain their dignity.
The way to do that is to let Kavanaugh take his seat on the court (assuming the FBI doesn’t find something new and explosive or at least two Republicans decide they can’t abide him) and then look to the future. I’d do this in three steps.
1. McConnell must apologize. The root of all this madness is Senate Republican leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia. McConnell’s alleged reason was that the next president should make that choice, even though Obama had nearly a year left in his term. It was an outrageous and shocking breach of protocol, and Democrats remain rightly incensed.
Republicans like to cite the Senate’s defeat of Robert Bork, chosen by President Reagan in 1987, as the original sin that led to today’s dysfunction. That’s ludicrous. Bork was granted a hearing and was rejected for what opponents considered his extreme views. Six Republicans were among those who voted no. That’s the way it’s supposed to work. Since that time, nearly every justice nominated by Republican and Democratic presidents alike has been approved by a wide bipartisan margin.
McConnell needs to acknowledge publicly the damage he did to the Senate and negotiate an agreement that neither party will try such a maneuver again. Leaders of both major parties should restore the 60-vote margin needed to avoid a filibuster, which would encourage presidents to choose consensus candidates for the court rather than extreme ideologues. In other words, they need to return to “regular order,” the breakdown of which the late senator John McCain cited when he voted against repealing the Affordable Care Act.
2. The court should be temporarily expanded. In writing about the lunacy that the Senate may fall into if the Democrats seek revenge for Garland, some have predicted that they may try to expand the size of the court in order to offset the conservative majority. As with the possible impeachment of Kavanaugh, that seems likely to set off an endless series of tit-for-tat actions.
But by temporarily expanding the court by one seat, from nine to 10, Congress could acknowledge the outrageousness of what happened to Garland and send a clear message that it won’t happen again. Appoint a 10th justice now, and the next time a justice leaves the court, let it shrink back to nine.
3. Trump should nominate Garland. Temporarily expanding the court from nine to 10 justices accomplishes nothing if President Trump simply chooses another candidate from the list that the Federalist Society has provided him. Trump should be part of the negotiations over how to fix the process. And he, McConnell, and Senate Democratic leader Chuck Schumer should all agree that the 10th justice will be none other than Judge Garland. Garland, a moderate, would be an ideal consensus choice; before McConnell nixed him, some Republican senators had said he was someone they could support.
Trump, needless to say, would have to demonstrate that he is capable of acting for the good of the country rather than simply indulging his animal instincts. It’s not likely. Then again, nothing I am suggesting here is likely.
The tragedy is that extreme polarization and partisan warfare are tearing down every institution of government, including the Supreme Court. I think the record is clear that Republicans are to blame far more than the Democrats. But they both need to be part of the solution — if there is to be any solution.
Brett Kavanaugh’s accuser now has a name and a harrowing story to tell. Over the next few days, we can expect an avalanche of news stories and cable talk about Christine Blasey Ford and whether her allegations are enough to topple the Kavanaugh nomination.
But there’s a broader context to all of this, and journalists would be negligent if they fail to explore it. Simply put, Kavanaugh has been in close proximity to, and in some cases has benefited from, a culture of sexual harassment and assault his entire life.
The best known example is Kavanaugh’s work for the grand inquisitor himself, Kenneth Starr, the independent counsel who exposed Bill Clinton’s sexual relationship with Monica Lewinsky. Both then and now, the focus has been on Clinton’s sleazy, exploitative behavior. But his affair with Lewinsky was nobody’s business until Starr concocted a bizarre legal theory that it would shed light on Paula Jones’ sexual-harassment lawsuit against Clinton — thus dragging a secret sexual relationship into the public sphere and transforming it into a perjury trap for Clinton.
Kavanaugh was a full participant in what amounted to an unforgivable assault on Lewinsky’s character. You may have heard that Kavanaugh drafted a series of questions that the president would be required to answer under oath. The questions say much about what was rattling around in Kavanaugh’s mind. Here is one of them: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?”
Clinton may have been the subject of the investigation, but Lewinsky suffered the most. To this day she is an object of pity and derision, despite her admirable attempts to speak out and reclaim her life. Many years later Starr, in what was surely one of the most satisfying ironies of our time, resigned in disgrace from the presidency of Baylor University for covering upinstances of sexual assault involving the school’s football team.
If Kavanaugh’s assault on Monica Lewinsky was his most notorious brush with sexual harassment, it was by no means the only one. Earlier this year Kavanaugh said he had no knowledge of dirty jokes and naked pictures of women that appeals court judge Alex Kozinski shared with his law clerks. Kavanaugh was among those clerks, and was apparently one of Kozinski’s favorites, as the mentor introduced the mentee to the Senate in 2006 when Kavanaugh was nominated for an appeals court judgeship.
“Kozinski’s sexual comments — to both men and women — were legendary,” wrote another ex-Kozinski clerk, Heidi Bond, at Slate. “When I first arrived in chambers, the outgoing clerks suggested that we should watch ‘The Aristocrats,’ a documentary about a notorious dirty joke, to prepare ourselves for the upcoming year. Kozinski’s email list had hundreds of participants, and some of the jokes he shared were incredibly off-color.” Yet Kavanaugh, when asked about the matter, replied: “I do not remember any such comments.”
His reputation in ruins, Kozinski retired. Kavanaugh, as he had following the Starr investigation, skated away.
There is more. Kavanaugh’s opposition to abortion rights is not necessarily related to his toleration of sexual harassment, of course. But some of his actions stand out. Despite Kavanaugh’s denial, White House records show that he was involved in the nomination of Judge William Pryor of Arkansas to an appeals court position. Pryor is a notorious culture warrior, calling Roe v. Wade an “abomination” and harshly criticizing homosexuality. As an appeals court judge himself, Kavanaugh ruled against a 17-year-old undocumented immigrant’s request for an abortion, a decision that one of his colleagues called “unconstitutional” and “wrong.”
We are already hearing that Kavanaugh’s actions as a minor should not be held against him all these years later, regardless of how reprehensible they were and regardless of the lasting harm that Christine Ford said was done to her psyche. Surely there is something to the idea that the actions of an adult should be taken more seriously than those of a minor. There’s a line to be drawn, even if you might draw it in a different place than I would.
But consider that, just a few years after his alleged assault on Ford, he joined a secret club at Yale called Truth and Courage that was devoted to heavy drinking and was “organized around having sex with coeds,” according to Kristin Sherry, an alum who was interviewed by BuzzFeed News.
Or consider that Kavanaugh is on the verge of joining the Supreme Court thanks to the patronage of President Trump, who has bragged about sexually assaulting women — boasts that have been corroborated.
In the days and weeks immediately following Kavanaugh’s nomination, the mainstream consensus was that he was a fine fellow, but gosh, he’s awfully conservative. The sheen has worn off. There is a coherent story to be told about Brett Kavanaugh, and it is ugly — the story of a child of privilege whose rise has been constructed, in part, on the degradation of women. Are the media capable of telling that story? We’ll see.