The assault allegations against Brett Kavanaugh are certainly disturbing. A 17-year-old is not an adult, but also certainly old enough to know better than to commit assault.
But even before this, Kavanaugh was a historically unpopular nominee. Conservatives want us to squint really hard, and see a sentimental portrait of a monkish, “exemplary” career, a “brilliant jurist”, kindly mentor, and basketball-coach dad. In fact, his career has featured stints as a hatchet man in the several of the most infamously partisan episodes of the 90’s and 2000’s, namely the Starr investigation, continuing to rehash the Vince Foster suicide, and the Manny Miranda thefts. He plainly lied about the latter in his 2004 confirmation vote. As Russ Feingold says, “Brett Kavanaugh has never appeared under oath before the U.S. Senate without lying.”
(He also has some super-sketchy finances: Who paid for his very expensive house? That’s not a small matter. Did he really go tens of thousands of dollars into debt for baseball tickets? Must we pretend there’s nothing here?)
Why is Kavanaugh here? It’s not in spite of his career advancing the most tendentious currents of right-wing zealotry; it’s because of it. He represents the interests of a tiny cadre of plutocrats; consistently ruling in their interests, warping the plain language of the Constitution and duly passed laws in the process. His is an ideology where the Fourth Amendment means not very much; the 14th Amendment (equal protection of the laws) so riddled with holes that it becomes worthless; a 2nd amendment so broadly and tortuously interpreted as to allow everything. Kavanaugh’s ode to William Rehnquist is particularly illuminating: With a phrase it shreds the notion that so-called strict constructionists are acting with any disinterested sense of fealty to pure language:
“It is fair to say that Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion, either in Roe itself or in later cases such as Casey,” Kavanaugh said. “But he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
“History and tradition”? What are the legitimate, canonical readings of “history and tradition” that should be recognized by the Court? And who decides what those are? Shall we now consider emanations and penumbras based on a justice’s background in America’s “history and tradition”? This is an intellectual gap you could drive a monster truck through. And he drives it like he stole it.
Most of all, as Matthew Yglesias points out at length, Kavanaugh’s activism will decimate our ability to regulate the markets that shape our lives. Legalistic or intellectual consistency is left in the dust; the only principle is to kneel before your plutocratic overlords, and never expect relief. Net neutrality is a violation of free speech; so is requiring union dues; so is campaign finance law. While the 2nd Amendment must be considered with back-breaking inclusiveness, the National Environmental Protection Act (creating the EPA) mustn’t include the regulation of CO2 since Congress didn’t specifically mention it, though it granted extremely broad powers to the EPA. It’s right there in black and white, and the implications are as plain as day. Nonetheless, Massachusetts vs. EPA, requiring the federal government to regulate CO2 as a pollutant, is almost certainly a goner – just as we need it the most.
Trump could have nominated a moderate — like President Obama magnanimously did. But this is a nominee whose views are deeply unpopular, even marginal; nominated by a President elected by a minority of voters; and might be confirmed by a Senate (an already-undemocratic body) with the slimmest majority. This is a raw power-play of the grandest, most consequential kind.
No one likes this stuff, and we don’t have to pretend that it’s all inevitable. We needn’t humor the plutocracy’s demands for intellectual respect. The President can nominate a moderate, instead of a right-wing assassin — and one who isn’t credibly accused of sexual assault.
