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.

39 thoughts on “The Constitution Will Survive, If We Deserve It

  1. Lee

    But winning elections is so HARD, Scott. It’s so much easier to crash the whole system. Or at least, that’s what the Left apparently trying to do.

    Bah, humbug. A pox on both their houses.

    1. SHG Post author

      There is a persistent belief on the left that they have majority support for their social justice agenda. The Dems should have won the election 80-20 over this fool, the least qualified candidate for president ever. Yet, they didn’t. Claims of winning the popular vote are a red herring, as there is no popular vote and, if there was, the entire dynamic of the election would have been different. The balance of the excuses is nonsensical, as if Comey or the Russians could have prevented an overwhelming win over Trump if Americans didn’t reject, en masse, a party dedicated to every marginalized cause rather than America.

      This isn’t my choice of justice. This won’t be my choice of SCOTUS. But the alternative is far worse. A pox on both their houses.

      1. Dan

        “The Dems should have won the election 80-20 over this fool, the least qualified candidate for president ever.”

        …and similarly, the republicans should have won 80-20 over Hillary. The parties were apparently trying to outdo each other in running the worst possible candidates–and I guess the Dems “won”.

    2. Schmendrick

      It’s not just winning elections. It’s also writing cogent and coherent legislation and navigating lobbying and entrenched special interests and conventional wisdom, which does turn out to be pretty dang tough even when you have both houses of congress and the presidency (witness the ACA fiasco).

  2. Billy Bob

    If Collins and Murkowski can be talked into switching sides, it could be close. McCain’s seat is empty?
    How does an unqualified president nominate a perfectly qualified candidate? In an imperfect world, that does not happen.
    The animals are getting restless and are demanding payback for the Garland humiliation. He was qualified as well, but didn’t make the cut, for some very strange reason. The Elephants in the Senate suddenly have short memories.

    Meanwhile some justices have been known to be minimally qualified. Not namin’ any names. Color me hysterical about the future, KrugMan-breath. The Times, they are not a changin’, no way Jose.

  3. delurking

    “Having watched most of the Brett Kavanaugh confirmation hearings, I deserve a medal.”
    OMG, you’ve become one of the snowflakes.

    Because I was having trouble falling asleep, I read the “racial profiling” email thread that Booker released. It is related to profiling in airport security measures. In it, Kavanaugh clearly states that he supports race-neutral security measures. Did Booker even read it? It doesn’t matter, because everyone anti-Kavanaugh will just assume he supports racial profiling, and everyone pro-Kavanaugh will say those were confidential and shouldn’t have been released, so it doesn’t matter what is in them.

    1. SHG Post author

      I sometimes wonder whether the effort to vilify Kav will cause him to be less sympathetic to the causes promoted by those who disingenuously sought to taint him. But I expect him to be stronger, more mature, more honorable, than to let such pettiness influence his judgment.

  4. PseudonymousKid

    Dear Papa,

    That you still think Kavanaugh’s qualifications and actual ideas matter when we elected Trump who you acknowledge has been disastrously unqualified and out of his league since day one is strange. Politics have all seemed to stoop to that low level. Taking a broader view of things is too healthy when I can live and die with every moment. Why would you want to rob me of so much fun?

    Kavanaugh is today’s devil, but he might be tomorrow’s angel. Stevens wasn’t always so cherished by some.


  5. Hunting Guy

    Robert Heinlein.

    “Never worry about theory as long as the machinery does what it’s supposed to do.”

    1. SHG Post author

      MLK said “The arc of the moral universe is long, but it bends toward justice.” The problem is who gets to decide what constitutes “justice”? That’s who builds the machinery.

  6. Richard Kopf


    I watched most of the hearing as well. I don’t want or a deserve a medal. I want and deserve a lobotomy.

    All the best.


    1. MelK

      Is it even possible for a candidate to get so far as a confirmation hearing and still flunk on jurist qualifications? Are there any questions a Senator can ask in those hearings that would provide new light on those qualifications, given their judicial history is public?

      Or is it all dogs and ponies by the time it gets to the hearing?

  7. Skink

    A completely unremarkable set of emails. “These are appropriate judges for nomination. . . .” “The proposed act may or may not be constitutional.” “The Office of the Solicitor General should be independent.” It’s regular lawyer work.

    The emails regarding “racial profiling” are nothing of the sort. It was a few months after 911. The government was trying to put some rules in place to counter terrorists on a temporary basis until a long-term plan was developed. The history of this type of terrorism was and is that there was a return to targets. The idea was to make travelers safe immediately and make some long-term rules over time. Kavanaugh had constitutional concerns over trying to identify terrorists, but recognized that something needed to be done right away. Who didn’t? Wasn’t everyone entering an airport at risk?

    He was a relatively young lawyer at the time, but you wouldn’t know it by his ability to recognize the issues and deal directly with the issues. God, I wish I had half that ability. No lawyer, even the ones in the Senate, could realistically see this as taint.

    What is really irksome is how the Senators spend so much time, days, asking “what if” questions. They know damn well judges can’t answer those questions because it’s clearly unethical. When they are told the questions can’t be answered, it’s reported as defiance. If Senators can’t demonstrate the slightest of intelligence, and if the media won’t check that lack of demonstration, then what hope is there that the unwashed will get it?

    I pray for the day these people put the Country first and their narrow beliefs aside. I pray for honest examination of issues, especially where there is no issue because the result is plain. I pray that one Member of Congress stands and says, “what we’re doing, and all of us, is bullshit.” But I don’t know if any of this has a prayer. Besides, I’m not sure the last would be reported.

    1. SHG Post author

      I was deeply, no profoundly, disappointed to see some of my friends in the media reporting the hearings to convey impressions they knew to be false. I will remember.

  8. Ray Lee

    While I wholeheartedly agree that the hearings have been a civic embarrassment, there were a couple bright spots covered well by the Sloth Committee Chair on the twitters. Specifically, the Q&A by Sasse on Federalism and the Q&A by Cruz on judicial review (judicial engagement vs judicial restraint / activism).

    1. SHG Post author

      I like Sasse (who happens to represent the state in which I am an admiral in their great navy). Not that he doesn’t play to the crowds as well, but at least he has better lines.

  9. Jake

    I’m generally a fan of Cory Booker, but his antics yesterday helped nobody. Well, almost nobody. The obviously coordinated shrieking protesters were also a wasted stroke. Or worse. Congress should just skip right to the ring-side show so popular in professional wrestling and get it over with.

    1. Jim Tyre

      OMFG, this is the DM-L who’ll be in charge while you’re gone, SHG? Clearly, SJ will not be the highbrow place to be. (I have no knowledge of David’s eyebrows.)

  10. Mike

    Look who’s a millennial snowflake now, thinking you deserve a medal just for watching someone else speak. Do I get a participation trophy for reading about it from you?


  11. Aaron

    I have to wonder how protesters were even present? Are these hearing open to the public? Is there a hotdog stand outside the room and somewhere to pick up SCOTUS swag? Is there really a good reason to have a studio audience present for these things?

    Actually, I kind of want a foam finger with “RGB” written on it now.

  12. Billy Bob

    No Constitution without tuition. You herd it hear first! Help me, Fubar!

    The House of Billy Bob has come up with a solution to the current, repeated SCOTUS debacle/kerfuffle/Kabuki confirmation circus: Revisiting the late great FDR, let’s “pack” the court to the bloody gills.

    Instead of four additional justices, how about one hundred? One hundred Supreme Court justices on the wall! One hundred justices on the wall? If one should accidentally fall, ninety-nine justices on the wall. (Who would notice? Who would care really?) Hey, we have one hundred semesters in the Senate, on a googled day. Right (Blue Blood) Blumenthal and Chucky (Baby) Schumer?

    The more, the merrier. Imagine how many more books could be published by smart Jewish guys named Jeffrey?!? In the DC-NY corridor, naturally, by top publishers. Can U say Scribners?

    Am not finished: Maybe then we could get some working-class, second and third-rate law school folks up there in those ridiculous black robes!. Harvard and Yale, move over into the clover. Help me, Fubar. I’m beggin’ ya!

    1. Skink

      Just when I was considering recommending you as an assistant bouncer in the Hotel lounge. I know there is certain danger, but I have faith, not necessarily unanimously held by the shareholders, that you can control yourself during the audition phase, which is two weeks and starts today.

  13. Dudeman

    Krugman refers to two stolen seats. I get the argument that the failure to hold hearings on Judge Garland equals one stolen seat. However, is every nominee from a republican president counted as another stolen seat? Is it possible that at some time in the future, there will be more stolen seats than justices? Does a future nominee by a democrat president reduce the stolen seat count? Or does a democratic presidents nominee only toll the stolen seat count?
    Or should I ignore Krugman?

    1. SHG Post author

      If one presumes Trump’s presidency to be illegitimate because he only won the electoral college, then everything he does is illegitimate, including nominating Supreme Court justices. So nothing can be done to undo these two stolen seats until the Dems get to nominate a majority to control the Court.

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