Three Questions for Judge Kavanaugh

Judge Kavanaugh, I don’t know what happened in 1982. But I’m deeply troubled by what I perceive as your lack of integrity last week. You told the Senate Judiciary Committee under oath that your “have you boofed” yearbook question referred to farting, that “devil’s triangle” was a drinking game, that a “Renate alumnius” was simply a friend of Renate with no sexual insinuations, that the drinking age was 18.

Really? As James Comey tweeted: “small lies matter, even about yearbooks.” No one sensible is going to hold teenage drinking against you, but we are bothered when you mislead senators and the public today and deny what is obvious: As you put it in 1983, “we’re loud, obnoxious drunks.”

.. What can we call these but lies? And they come on top of deeply misleading testimony about your knowledge of stolen documents when you were in the Bush White House and your involvement in judicial nominations then.

.. 2. Do you have empathy for those who aren’t so blessed as yourself?

An air of entitlement hangs over both your testimony

.. Where the Supreme Court has made its worst mistakes, the problems have arisen often not from a lack of intelligence but from a failure of empathy.

  • In Dred Scott and Plessy, justices did not appreciate what it meant to be black in America;
  • in Korematsu, what it meant to be a Japanese-American facing internment;
  • in Buck v. Bell, what it meant to be a marginalized woman;
  • in Lochner, what it meant to be a laborer;
  • in Bowers v. Hardwick, what it meant to be gay.

If you had been on the court, Judge Kavanaugh, in 1873 for Bradwell v. Illinois, which upheld the State of Illinois’s decision to deny a woman a license to practice law based on her gender, your opinion no doubt would have been well reasoned — but would it have been just?

The American Bar Association’s Model Code of Judicial Conduct states, “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary.” Sneering at senators, even when feeling provoked, does not fit that code.

.. I’ve learned from my criminal justice reporting that witnesses err surprisingly often. You have earned a reputation as a first-rate conservative judge, and I thought it possible that there was some mistake and that you had been terribly wronged. But ultimately what perhaps damaged you most was not the unproven allegations of assaults decades ago, but your own lies and partisanship just last week.

.. President Trump has mocked Dr. Blasey, and Republican senators have released an explicit sexual statement to shame Julie Swetnick, another woman whom they have not bothered to listen to. So it appears that your side’s strategy is not to dispel the suspicion but rather to humiliate the accusers — violating them in a display of power and entitlement that is an echo of what they say took place so many years ago.

If that’s the path you choose, you should not sit on the Supreme Court.

The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline

— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”

.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.

.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.

.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”

.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.

Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.

Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.

.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”

Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”

“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.

To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.

.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.

They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.

.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”

.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.

.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.

.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.

.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.

.. “It was a poisonous session, as acrimonious as I have witnessed since sitting in the committee’s hearing room for the grilling of Anita Hill during the second round of the Clarence Thomas hearings,” writes columnist Ruth Marcus.“And while no dispute over documents, however impassioned, can rival the Hill-Thomas encounter, the Republican majority’s handling of this issue will be even more dangerous for the future of the Senate’s ability to conduct its constitutional duty of advice and consent.
 “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. …
..  ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”

John Brennan isn’t the real victim

Mr. Trump, in fact, made no secret of his illegitimate motive: In an interview published in the Wall Street Journal on Wednesday, he blamed Mr. Brennan for the special counsel’s investigation into possible Russian collusion with the Trump campaign. Revoking Mr. Brennan’s clearance is an act of petty vengeance.

.. The real victim here is not Mr. Brennan, who will get along fine without his security clearance, but the national security of the United States and its democratic norms. National security is harmed because administration officials and members of Congress benefit when they can draw upon the wisdom and experience of long-serving public servants such as Mr. Brennan. Mr. Trump has threatened eight other former officials , and even one current official, with similar treatment. Over time, that would make their advice less useful to officials who might otherwise benefit from it.

.. Democratic norms erode as the president, inventing insulting pretexts for his actions, uses his authority over access to classified information to bully and punish critics and would-be critics.

Those who may be more vulnerable than Mr. Brennan, who rely on their security clearances for their employability in the private or public sector, may indeed be intimidated into silence.

.. “I would consider it an honor if you would revoke my security clearance as well, so I can add my name to the list of men and women who have spoken up against your presidency,” he writes. “If you think for a moment that your McCarthy-era tactics will suppress the voices of criticism, you are sadly mistaken.”

In Mr. Trump’s America, every transition of power would result in the vilification, demotion and humiliation of those who served before, even civil servants who were honorably performing their duty. His conception of government denies the possibility of any motivation beyond partisan — or, in Mr. Trump’s case, personal — loyalty, at the expense of the principle that patriotic Americans can put the national interest above such considerations. It is pettiness distilled and more revealing of the president’s malformed sense of duty than that of his targets. This is the national debasement that Mr. Ryan and the rest of his party have enabled.

Maggie Haberman: Why I Needed to Pull Back From Twitter

 complained to a close friend that I hated being on Twitter. It was distorting discourse, I said. I couldn’t turn off the noise. She asked what was the worst that could happen if I stepped away from it.

There was nothing I could think of. And so just after 6 p.m. last Sunday, I did.

.. After nearly nine years and 187,000 tweets, I have used Twitter enough to know that it no longer works well for me. I will re-engage eventually, but in a different way.

.. Twitter has stopped being a place where I could learn things I didn’t know, glean information that was free from errors about a breaking news story or engage in a discussion and be reasonably confident that people’s criticisms were in good faith.

.. The viciousness, toxic partisan anger, intellectual dishonesty, motive-questioning and sexism are at all-time highs, with no end in sight.

.. It is a place where people who are understandably upset about any number of things go to feed their anger, where the underbelly of free speech is at its most bilious.

.. Twitter is now an anger video game for many users. It is the only platform on which people feel free to say things they’d never say to someone’s face.

.. During the 2012 campaign, the first during which Twitter was widely used by journalists and campaign aides, I became something of a scold to younger reporters who I thought misused the medium.

.. Pictures of themselves at events, inside jokes and conversation fragments were all there for the world to see. They should treat their feeds like news platforms, I huffed

.. But Twitter has a staccato allure for those of us who need frequent inputs and have grown accustomed to them in the Trump era, with news cycles that last roughly three hours.

.. Many pointed out errors, but most did it respectfully, and I was appreciative.

.. But the medium has changed. Everyone I follow on the site seems to be tweeting more frequently, so I had to check in more frequently. No matter the time of day or night, I felt like I had to plug back into the Matrix, only to be overwhelmed by the amount of content.

.. instead of engaging in thoughtful debates, I found myself spending an increasing amount of time explaining an errant word or a poorly phrased tweet, and coming off defensive as I did it.

.. On Twitter, everything is shrunk down to the same size, making it harder to discern what is a big deal and what is not.

.. Tone often overshadows the actual news. All outrages appear equal. And that makes it harder for significant events — like Mr. Trump’s extraordinarily pliant performance with President Vladimir Putin of Russia — to break through.

.. More significant is the way Mr. Trump has tried to turn everyone around him, including the journalists who cover him, into part of his story.

And people on Twitter have started to react to me in that same way, treating me as if I am a protagonist in the president’s narrative.

.. He creates the impression that the media is almost as powerful as he is in his incessantpersonalized attacks on reporters on Twitter.

.. Twitter is a useful and important platform. It’s a good aggregator for breaking news.

.. The downside is that everyone is treated as equally expert on various topics.