In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.
But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.
Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)
The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.
This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.
There is a lot to chew over in Ben Smith’s deep dive into The Washington Post, which — like news (and non-news) organizations everywhere — is struggling with issues of diversity. But let me keep the focus narrow here, because Smith leads with a blockbuster anecdote about something that unfolded during Brett Kavanaugh’s Supreme Court confirmation hearings in 2018. Smith writes in The New York Times:
Bob Woodward, the Post legend who protected the identity of his Watergate source, Deep Throat, for 30 years, was going to unmask one of his own confidential sources. He was, in particular, going to disclose that Judge Kavanaugh had been an anonymous source in his 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”
Mr. Woodward was planning to expose Mr. Kavanaugh because the judge had publicly denied — in a huffy letter in 1999 to The Post — an account about Kenneth Starr’s investigation of President Bill Clinton that he had himself, confidentially, provided to Mr. Woodward for his book. (Mr. Kavanaugh served as a lawyer on Mr. Starr’s team.)
What Kavanaugh allegedly did pretty much defines one of the circumstances under which a reporter might consider exposing an anonymous source: he told the truth (apparently) to Woodward and then lied about it in public. And the stakes were high, as Woodward’s story, if published, could have presented yet another obstacle to Kavanaugh’s confirmation.
But executive editor Marty Baron intervened, according to Smith: “Mr. Baron and other editors persuaded Mr. Woodward that it would be bad for The Post and ‘bad for Bob’ to disclose a source, one of the journalists told me. The piece never ran.”
Among those siding with Baron is Matt Storin, his predecessor as editor of The Boston Globe, where Baron served for nearly more than a decade before moving to the Post. “I’m not in a position to render judgment on a lot of this piece, but @PostBaron absolutely did the right thing on the Woodward issue, supporting any reporter in the future who needs an anonymous source,” Storin tweeted.
I'm not in a position to render judgment on a lot of this piece, but @PostBaron absolutely did the right thing on the Woodward issue, supporting any reporter in the future who needs an anonymous source. https://t.co/2vTHziEbS9
I agree with Storin — and, thus, with Baron. Unless Woodward promised Kavanaugh he’d keep his identity confidential only if he subsequently told the truth in public about their exchange, then Woodward had no business breaking their agreement. It’s a tough call, and the fact that someone of Woodward’s stature wanted to go the other way shows that good people can differ on this. But Woodward, pressured by Baron, ultimately did the right thing.
It’s not like Kavanaugh is the first source to tell a reporter one thing in confidence and then say something else publicly. It’s happened to me, and I’m sure most reporters would tell you the same thing. But that’s one of the risks you take when grant anonymity to someone.
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.
Monday was a big day for Sean Hannity, the conspiracy-minded Fox News Channel host. After all, it’s not every day that the president of the United States — even one you’re as close to as Hannity is to Donald Trump — schedules the unveiling of his choice for the Supreme Court in order to give you a ratings boost. According to Gabriel Sherman of Vanity Fair, some White House staff members believed Trump did exactly that. Sherman tweeted that Trump may have chosen 9 p.m. at the behest of his sleazy new communications director, Bill Shine, the former head of Fox News.
Despite this propitious opportunity, Hannity didn’t really deliver the goods, prattling on for an hour with his usual talking points and his usual guests. He didn’t quite come off as bored, but his anger and his enthusiasm seemed rote. Indeed, there was a play-acting quality to the proceedings in general. Both Republicans and Democrats know that the president’s choice, Court of Appeals Judge Brett Kavanaugh, is pretty much a lock to win confirmation.
Still, three themes emerged that I suspect we will hear over and over during the next few months.
The first is that we are a “constitutional republic.” President Trump made that point in his opening remarks, and Hannity repeated it several times. That might seem like a statement of the obvious. So why keep bringing it up? I suspect it’s because we are in the midst of a prolonged period of minority rule. A number of articles have been published recently documenting growing restiveness among the powerless majority.
Consider: Trump is president because for the first time in more than a century the winning candidate captured the Electoral College despite losing the popular vote by a wide margin. (Remember, the contest between George W. Bush and Al Gore ended in a virtual tie.) That’s not all. By 54 percent to 42 percent, voters favored Democratic candidates for the U.S. Senate in 2016. And the Republicans’ victory in House races paid off in numbers disproportionate to their razor-thin margin of 49 percent to 48 percent.
No, that’s not the way we count votes in Senate and House elections. But it does show that Democrats have been shut out of power even though voters prefer them. Mitch McConnell’s deeply corrupt refusal to allow a vote on President Barack Obama’s Supreme Court nominee, Merrick Garland, only served to underscore this anti-majoritarian trend. So expect to see a lot of talk in the weeks to come from Hannity and other Trump supporters that the United States isn’t really a democracy, and why that’s a Good Thing.
The second talking point I noticed is that the right wants to cast Democrats as opponents of fair play by declaring their opposition to Kavanaugh before giving him a chance to make his case. For instance, conservatives are having some fun with a statement from the Women’s March, clearly written before the Kavanaugh announcement, saying that if “XX” is confirmed it will be “a death sentence for thousands of women.”
“They would object to anyone this president nominated,” Fox News’ Shannon Bream told Hannity. “They’re going to come after him because that’s what they do,” added Jay Sekulow, a lawyer who’s a veteran of right-wing causes as well as a member of Trump’s legal team. Hannity himself warned his viewers that “the smearing, the besmirching, the fear-mongering … this all-out effort to Bork Judge Kavanaugh” has already begun. Hannity added: “They are going to lie to you. That’s what they do. You have to rely on your heart and mind and do your own research.”
Here’s the problem with the notion that the instant opposition to Kavanaugh is somehow unfair: During the campaign, Trump put out a list of 11 judges from which he said he would choose. The list was later expanded to 25. Hannity and his guests referred to the list several times Monday night as an example of how “transparent” Trump has been. Well, you can’t have it both ways. Democrats and liberals have known for many months that Kavanaugh could be picked. It would have been a surprise if they weren’t prepared with an instant reaction to every XX on the list.
The third talking point may prove to be the most substantive, especially if there’s any chance of persuading a few Republicans opposed to runaway executive power to vote against Kavanaugh. (Ha ha! I can’t believe I just typed that.) Hannity made several uneasy references to Kavanaugh’s arguing in a 2009 law review article that a president should not be subject to criminal or civil proceedings while in office, and he noted that this was a reversal of Kavanaugh’s earlier position.
In fact, Kavanaugh did a complete flip-flop. Back when he was working on Kenneth Starr’s inquisition into the great crime of whether Bill Clinton had lied about oral sex, Kavanaugh believed that the president should not get a “break,” as he put it. Now, though, Kavanaugh thinks the president should be held harmless until after he leaves office.
“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote in the Minnesota Law Review. “To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during his deposition in the [Paula] Jones case if nothing else.”
Now, of course, we have another president facing legal jeopardy on a variety of criminal and civil fronts, from possible collusion with the Russian government to the alleged use of his charitable foundation for personal gain. It’s not difficult to understand why Hannity and his guests on Monday stepped carefully around Kavanaugh’s change of heart, even if they are secretly delighted.
Democrats, on the other hand, wasted no time in picking up on that point. On MSNBC, Sen. Elizabeth Warren said that “Donald Trump got the trifecta” — a nominee who would likely vote to overturn Roe v. Wade, kill off the Affordable Care Act once and for all, and, if necessary, help Trump “if he gets into serious legal trouble.”
That one of Bill Clinton’s persecutors may emerge as a defender of Trump’s possible legal offenses is in some cosmic sense an apotheosis of hypocrisy, even if on a personal level Kavanaugh’s reversal was sincere. I don’t expect Hannity and his crew to defend that hypocrisy effectively. But I have no doubt that they’ll defend it loudly, repetitively, and disingenuously, which in the age of Trump is all that seems to matter.