The Scripted Confirmation of Brett Kavanaugh

Consider the possibility that this is all a pre-planned script whereby Jeff Flake is depicted as the Honest Principled Man who ultimately gives everyone else cover to vote for Kavanaugh https://t.co/IqL3b020mh

— David Sirota (@davidsirota) September 30, 2018

by Gaius Publius

After you come down from praising of Jeff Flake's heroism (or his cowardice in the face of sexual assault victims) consider the following, from an interview with Flake in the Atlantic:

Coppins: So, you were motivated mainly by preserving institutional credibility?

Flake: Two institutions, really. One, the Supreme Court is the lone institution where most Americans still have some faith. And then the U.S. Senate as an institution—we’re coming apart at the seams. There’s no currency, no market for reaching across the aisle. It just makes it so difficult.

Flake's stated goal in insisting on an additional FBI check is to add credibility to the process so that the credibility of the government (which will put and contain Kavanaugh on the high court bench) can be maintained. An additional FBI check also takes away the strongest Democratic Party argument as presented in the hearings: "Why won't you submit to an FBI investigation?" and it gives the Joe Manchins of the world something to say in mitigation after they vote to confirm. 

Flake is worried, and rightly so, that if Kavanaugh is confirmed by raw power alone, without the blessing of the FBI, the Supreme Court will be seen as illegitimate. As I wrote earlier in "Anthony Kennedy and Our Delayed Constitutional Crisis," the Court is teetering on that perception already:

With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O'Connor and Kennedy were the Court's key enablers. They 

• Cast the deciding vote that made each decision possible
• Kept alive the illusion of the Court's non-partisan legitimacy

[...]

The second point above, about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.

We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O'Connor and Kennedy are responsible for that delay.

I'm not alone in think along these lines. Juan Cole at Informed Comment agrees, offering two ways that Kavanaugh's confirmation, added to Trump's potential firing of Rod Rosenstein, could lead to a "Great American Apocalypse."

The Supreme Court is already a captured agent of the Republican Party. But thanks to "swing vote" justices like Anthony Kennedy, it's merely seen as "divided." That will change.

If Brett Kavanaugh is added to a captured Court via a process that itself is seen as captured, then joins 5-4 decision after 5-4 decision to a) further increase the power of the minority Republican Party via highly restricted voting rights; b) implement radical Koch anti-government ideology by removing, for example, regulatory power from the Executive Branch; and c) enable the freakish dreams of the most rightwing fundamentalists in the country (imagine if contraception were only available on a state-by-state basis) — I think that will tear the country clean apart.

I also think Jeff Flake agrees, and I think he thinks that if he gets the FBI to sign off on Kavanaugh first, he can head that outcome off. He's wrong, of course, but he'll be a lobbyist by the time anyone finds out. His future will be secured, even as ours will be very much more in doubt.

What Happens Next?

What happens next in the Kavanaugh confirmation process is anyone's guess, since the public and its anger are in play. But if I were to place bets on what just the political actors will do, here's the scenario:

• The FBI will issue a blatantly and politically manipulated report that neither confirms nor contradicts the charges against Brett Kavanaugh.
   
• Republicans will declare Kavanaugh vindicated and move the nomination to a vote at the earliest opportunity.
   
• Joe Manchin and Jeff Flake will both vote to confirm, providing 51 Yes votes and leaving one slot open for a single Republican No.
   
• Susan Collins and Lisa Murkowski will decide between themselves who gets to vote No and save what's left of her reputation and career. The woman at most risk will take that slot.

• Since Susan Collins is under the most fire from hometown voters right now, I expect her to take a "principled stand" and find it in her conscience to vote not to confirm Brett Kavanaugh "for the sake of the women of this country" — all in a losing cause.

Which means:

• Kavanaugh will be seated on the Supreme Court for life, giving it the equivalent of five Antonin Scalias for the next two decades at least.
   
• When a critical mass of voters has had it with the decisions of a fully captured, radical-Republican Court, the country will come apart, just as it did 165 years ago, but not in the same way. 

Read Lincoln's Cooper Union speech. Addressing the people of the South, Lincoln said: "Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events."

In his era, a radical, intransigent, uncompromising "rule or ruin" minority drove the nation into civil war. That same "rule or ruin" minority is back — abetted this time by the very very wealthy — and they're doing it again. Kavanaugh is the next step in their putsch, their capture of the organs of the state, and unless the public derails his confirmation, it will succeed.

Nice work, Mr. Flake. You too, Mr. Manchin. I wish I had a gift for you equivalent to the one you're giving us. If I did have such a gift, it would arrive at your door tomorrow.

GP