The Constitution Will Survive, If We Deserve It

Having watched most of the Brett Kavanaugh confirmation hearings, I deserve a medal. It was a passion play of epic nonsense, designed not to serve any useful constitutional function of “advise and consent,” but to inflame an audience ripe for fury. The Republicans played to their team. The Democrats played to their team. Nobody played to America. Nobody seems to remember that there’s an America out there that still believes there will be a nation after the current ship of fools runs aground.

Watching it with the eyes of a lawyer, knowing that this was a vote on the Supremes that would decide cases that would impact real people’s lives, was infuriating, not because Kavanaugh was the dreaded fifth conservative vote on the Court, but because it revealed so precious little about Kavanaugh.

It does me no good to know that Sen. Cory Booker had his “I am Spartacus” moment, where he boldly pronounced that he would reveal confidential papers that should never have been confidential but had already been released for disclosure. Or the fraud from California, Kamala Harris, instructing her witness to be “careful how you answer.” Then again, Sen. John Cornyn was just as shady, threatening Booker’s release of documents knowing they had already been cleared. They weren’t going to pass up their chance for a close-up, Mr. DeMille.

The hearings were a sham. The complaints about the hearings were a sham. The claims of documents concealed from the Judiciary Committee was a sham. The angst over the Replublicans’ outrageous and cowardly treatment of the Merrick Garland nomination was a sham. Note, this may be real to you, but not to the senators. They know they lost that battle and have moved to the next, and only raise it to renew your anger. They know better.

But the biggest sham is taking out hatred toward Trump on Kavanaugh. Like Justice Gorsuch before him, he’s respectable, qualified judge. He was on the D.C. Circuit, even if he issued rulings with which you disagree. He’s legally qualified. He’s temperamentally qualified. He’s of good character, despite the efforts to vilify him as a person. And he will rule in ways you and I disagree. I know this because every justice on the Supreme Court does, and has, and will.

But what about his politics? What about them? I know Linda Greenhouse has been telling us, over and over, that the Supreme Court is comprised of partisan lackeys who do what their elected masters command them to do, but that’s a lie. Supreme Court clerks, many of whom end up in academia, almost invariably express the sincerity, effort, concern and, above all, fairness of the justices they served. And the other justices on the Court.

And the justices themselves get along well, as Nino Scalia and RBG were great friends despite having fundamental policy disagreements. But they could talk, argue, disagree. And maybe persuade each other, either to reach agreement or at least to disagree less than when they started.

Krugman runs through the standard list of excuses for why Trump is president, culminating in the decisions Kavanaugh is going to make.

So who is Brett Kavanaugh? If he looks like a right-wing apparatchik and quacks like a right-wing apparatchik, he’s almost surely a right-wing apparatchik. Which brings us to the coming constitutional crises.

The immediate question is how the court will handle Donald Trump’s obstruction of justice, which is likely to reach epic levels very soon. If you think Kavanaugh wouldn’t completely support Trump, I have some miracle dietary supplements you might want to buy.

Such a simple world must be horrible to live in, but this isn’t real. Once Kavanaugh is on the Supreme Court, as he will be when a party-line vote, at least, confirms him, he has no need of Trump anymore. He’s on for life. Trump can’t touch him. And he’s still only one of nine, regardless, so even if he is the right-wing apparatchik Krugman imagines, the other four conservative wing judges would have to be Trump sycophants as well. But this is all fantasy because it’s not remotely how the Supreme Court happens.

Beyond that, what will happen if we eventually get a Democratic Congress and president, who try to move forward with a center-left agenda? What I mean by that, by the way, are things like expanding health coverage and raising taxes on high incomes — things that aren’t radical, and in fact have broad popular support.

How thrilling that would be if it happened, but there is every indication that it won’t, at least not for a few presidential cycles, as the Democratic party is the captive of radicals, and it sees its future as being ever-more radical, the party of the few at the expense of the many. But even if Krugman’s fantasy was remotely possible, then what?

There’s every reason to believe that a court including Kavanaugh would strike down everything elected officials tried to do. Policy substance aside, this would destroy the court’s legitimacy, making its naked partisanship — based, again, on two stolen seats — clear to all. But it would probably happen anyway.

This isn’t how the law works, how courts work, how the process works. It’s really quite absurd. Worse than absurd, it feeds the craziness and ignorance that makes people hysterical about the future, that there is no hope. The solution to Trump isn’t to rewrite the Constitution, to attack another sitting circuit judge who doesn’t reflect your, or my, jurisprudential views. The solution is to win elections by having a platform and belief system that doesn’t exclude the majority of this nation from being allowed to have a voice, to thrive, to feed their kids and to hope for a better future.

Kavanaugh will be a vote to destroy the legitimacy of one of the last federal institutions standing.

Kavanaugh will be confirmed. Of this there was never any doubt. He will vote in whatever way he decides appropriate, as do all judges despite your fantasies of partisan hackery. But Krugman’s final point, that the Supreme Court is the “last federal institution standing” is important. If it falls, it won’t be because of Kavanaugh, but because we’ve lost our minds, blinded by our ignorance and fury at being punished for our hubris by Trump’s election.

No matter how certain you may be that Kavanaugh’s every decision will be absolutely horrible, if we bring down the last institution standing, there will be nothing left. And if you hate the Supreme Court with a Justice Kavanaugh, you’re really going to hate a nation without a viable Supreme Court because then it will just be who has the most guns. They do.

The Constitution Will Survive, If We Deserve It curated from Simple Justice