U.S. Court of Appeals for the District of Columbia Circuit
Thursday, September 6, 2018
With the final glories of baseball season upon us, it’s apt Brett Kavanaugh would portray himself as America’s umpire — an impartial neutral calling balls and strikes wherever they happened to fall — as he seeks a seat on the United States Supreme Court. It’s a strategically sculpted metaphor for a nice guy, we’ve all been told, who drove his kids to school and coached one of his daughter’s basketball teams. It also misses the mark. Kavanaugh has been tossing spitballs and bean balls at the heads of opposing batters for much of his adult life as a trench warrior for Republican causes. He’s never been above the fray; he is the fray.
If we’re lucky, we’ll have a clearer picture of this by the end of this week’s confirmation circus. If we don’t, well, that won’t have been by accident.
We got the first glimmer of a real Kavanaugh Tuesday morning when a father of one of the kids killed at Marjory Stoneman Douglas High School this year reached out his hand to Kavanaugh. Umpire Kavanaugh showed the man his back and walked. In his judicial writings, Kavanaugh has made clear that if the Founding Fathers meant to outlaw weapons that can fire 20 rounds in the blink of an eye, they would have written it down. Their silence, he’s argued, speaks volumes.
In all the noise of the day — 70 arrests — Kavanaugh was also confronted by a group of women dressed in the red-caped, white-bonneted uniform worn by the sex slaves in the televised version of The Handmaid’s Tale. Which is not surprising, since Kavanaugh’s two avowed heroes on the bench — Antonin Scalia and William Rehnquist — were famously outspoken in their denunciations of Roe v. Wade, the case that, 45 years ago, finally allowed women to control their own bodies.
Back when Independent Counsel Kenneth Starr and the Republicans were trying to impeach President Bill Clinton for lying about having sex with White House intern Monica Lewinsky, Kavanaugh was in the thick of it. He formulated a list of pornographically explicit questions he pushed Starr to ask Clinton. If Lewinsky said the president ejaculated into a trash can, would she be lying? Even among Starr’s inner circle, Kavanaugh’s zeal seemed excessive and excused on the grounds of sleep deprivation. But when Kavanaugh began working in the George W. Bush White House, he experienced a profound change of heart on executive privilege. Presidents, he no longer believes, should be subject to the intrusions of subpoena or indictment.
When the state of Florida was engulfed in the messy recount of its 2000 presidential election results, Kavanaugh was an integral part of W’s legal team. Thanks to their arguments — and help from the Supreme Court — they could steal that election fair and square. Later, as the Bush White House grappled with the legal niceties of torture and the rights of enemy combatants, Kavanaugh, by then a key White House player, testified in 2006 he knew nothing. Turns out he was in the room providing legal advice.
After Trump announced Kavanaugh’s nomination, the National Archives — apolitical and nonpartisan — informed the Senate committee they couldn’t deliver the documents needed to vet Kavanaugh until the end of this October. Republican leadership flipped. He had to be confirmed, they insisted, no later than October 1. Former president George W. Bush then stepped in, allowing his own personal attorney Bill Burck to decide which ones got doled out and which ones wouldn’t.
Most, Burck decided, would not. Like 90 percent. Especially none of the 100,000 pages detailing Kavanaugh’s role screening potential judicial appointees. If Kavanaugh’s true feelings on abortion law were to have been expressed, that might jeopardize support he now has from the two Republicans on the committee who believe in abortion rights, Lisa Murkowski and Susan Collins. For the time being, they’ve convinced themselves Kavanaugh accepts Roe v. Wade as “settled law.” Their confidence cannot be allowed to become unsettled. The Republicans enjoy only a two-vote margin.
This, for the record, is not the way it’s usually done. Not remotely. That’s why Democrats like senators Dianne Feinstein of California and Patrick Leahy of Vermont are screaming bloody murder. Leahy called the vetting process the most Orwellian of his 44-year career. “And I’ve seen more of these than any person serving in the Senate today,” he lamented.
Burck, it just happens, also represents three former White House players who have been questioned at length by Special Counsel Robert Mueller about collusion with the Russians. Chief among them is White House Counsel Don McGahn, who was effectively fired last week for meeting 30 hours with Mueller; McGahn, among other things, led Kavanaugh’s confirmation process. In addition, Burck has been retained by former Trump strategist Steve Bannon and former chief of staff Reince Priebus.
In other words, it’s a mess.
Burck also used to work in the Bush White House. Kavanaugh was Burck’s boss. Burck was also Kavanaugh’s closest friend. The two went to Yale and clerked for Supreme Court Justice Anthony Kennedy and then for Ninth Circuit judge Alex Kozinski, who decided to retire only after several women described how he showed them porno images on his computer and asked if the images aroused them. Burck represented Kozinski in this too.
This is a critical tipping point. With Kavanaugh on the bench, the court no longer merely leans right. It is right. That’s the Big Payoff. All our most rigid authoritarian impulses — sexual, corporate, constitutional, racial, environmental — will be gussied up in the best high-minded legal justifications a solid right-wing majority can muster.
Good thing Kavanaugh’s such a nice guy.