The Brett Kavanaugh confirmation hearings last week were political theater, but they were important and revealing political theater. Despite the hearings, the real likelihood that Kavanaugh committed perjury, his inability to tell the committee if he had discussed the Mueller investigation with anybody from Donald Trump’s personal lawyer’s firm and his commitment to a less equal and just America, he will almost certainly be confirmed. It would be a great surprise if any Senate Republican voted against Kavanaugh and it is still possible that a small number of Senate Democrats will vote to confirm Donald Trump’s newest Supreme Court nominee.
It is easy to see Kavanaugh as another result of Donald Trump’s presidency, particularly as Kavanaugh’s position that sitting Presidents cannot be indicted, compelled to testify or to turn evidence over to investigators was likely one of the reasons Trump nominated him. Despite this, it is wrong to see Kavanaugh as simply a Trump creation. Kavanaugh was on a pre-approved list of potential nominees crafted by the Heritage Foundation, a conservative think tank aligned with the Republican Party, and has spent the last several decades dutifully climbing the ladder of Republican politics and the conservative legal world.
Given Kavanaugh’s deep roots in conservative political and legal movements, his views on abortion rights, labor, civil rights, voting rights and the environment are to be expected. It is also to be expected that anybody nominated to the Supreme Court by a Republican President would share these views. However, his views on presidential power are, while extremely helpful to the current President, not conservative orthodoxy. This is what made last week’s hearings and the unified Republican support for him, that even extended to concealing much of his public record from Senate Democrats, so significant.
The Senate Republicans have fought hard for a nominee whose record suggests that he is very likely to side with Donald Trump on any disputes regarding the Mueller, or other future, investigations. In other words, knowing that if confirmed Kavanaugh will help Trump obstruct justice, Senate Republicans have done everything within their power to make sure he is confirmed. This demonstrates that there is no principled opposition to Trump in the Republican Party and that Republicans never-Trumpers are political unicorns. Some Republicans, for example Nebraska Senator Ben Sasse, appear to like the attention they get from the occasional criticism of Donald Trump, but their votes on this confirmation make it clear that ultimately they are political cowards who will defend Trump.
By supporting Kavanaugh so unambiguously, Republicans Senate missed an opportunity to break from the President while hewing to their conservative values, precisely what principled conservatives should do at a time like this. If Kavanaugh were rejected, the conservative movement would not exactly suffer. Instead, Donald Trump would have to choose another nominee, presumably also one that had the blessing of the Heritage Foundation, but without Kavanaugh’s views on presidential immunity, something that is not central to Republicans outside the White House. This would have been fine outcome for Senate Republicans. This will not happen because the GOP Senators will all vote for Kavanaugh, thus giving license to the President to continue obstructing justice.
This constitutes the final capture of the congressional Republicans by the Trump administration. It is no longer possible to speak of the crimes of the administration as something distinct from the rest of the Republican Party in Washington who are, at the very least, deeply complicit in the cover up. The Kavanaugh nomination was the perfect opportunity for Republicans in the Senate to send a message to Trump without setting their conservative agenda back in any way, but rather than do that, they rushed through and helped conceal the record of, a nominee who is distinguishable from other conservative nominees almost entirely because of his views on presidential power. Therefore, the message sent from the Senate, at least to the Republican side, to the President is “don’t worry we’ve got your back.”
When Brett Kavanaugh gets confirmed, which barring extraordinary and unforeseen circumstances will happen, and Donald Trump is given a get out of jail free card from the Supreme Court we should remember that it was Republican Senators, not Donald Trump, who voted to confirm him, shepherded Kavanaugh through a Senate hearing and withheld important documents about Kavanaugh from Senate Democrats and the American people. For anybody who has been paying attention during the last few months, years or decades this is not exactly a shock, but it is nonetheless significant. We now must recognize that there is no scenario where the GOP would act to rein in an erratic and dangerous President. The depths of their complicity grows with each passing week, but last week was a big one.
Lincoln Mitchell is a scholar, consultant and writer based in New York and San Francisco.
Follow me on Twitter at: http://twitter.com/LincolnMitchell