The Times podcast focuses less on Gingrich’s style and more on his use of so-called “wedge issues.” Times columnist Jennifer Senior interviews Republican former congressman Vin Weber about how the GOP “exploited” American differences on cultural issues such as partial-birth abortion and gay marriage to help hand them their first majority in two generations.
But it turns out that “wedge issue” is just another word for “popular position.” In the early 1990s, there wasn’t a meaningful electoral constituency for gay marriage. There wasn’t much public support for partial-birth abortion. By bringing up cultural issues, the Republicans not only gave voice to millions of Americans who had deep concerns about the cultural direction of the country, but also exposed divisions in the Democratic coalition.
Gingrich’s Contract with America (you can read it here) was extensively poll-tested to present only promises that had overwhelming public support. Gingrich was a political street fighter, yes, but he was playing a very strong political hand. Congress was overdue for serious change.
.. it’s hard to argue that he “broke politics” when the GOP House and the Clinton administration worked together to enact significant legislation.
.. What? The president of the United States (a man who is almost certainly a sexual predator, by the way) had an affair with an intern in the Oval Office and lied about it under oath. He lied to the American people. He conducted a systematic smear campaign against his accusers and his investigators. None of this was Newt Gingrich’s fault.
.. It is absolutely worth profiling Gingrich and considering his role in American politics — including the undeniable part he’s played in American polarization. Some of his tactics have absolutely been destructive. But the diagnosis here is just fundamentally wrong.
.. Did Newt Gingrich “break” American politics more than Roe v. Wade did? Do progressives know or care about the shock waves Ted Kennedy’s “Bork’s America” speech sent rippling through conservative America? Lest you need reminding, here is the key part of that vile text:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
But for progressives, Roe is good and Bork is bad, and so a bit of sloppy judicial reasoning or rhetorical excess is but a trifling compared to the worth of the broader cause. It’s the arc of history bending towards justice, and that’s not always neat or clean.
National Review: Brett Kavanaugh: A good man and deserving judge
1. This was a contrived eleventh-hour ambush of the Kavanaugh nomination. From our editorial:
The hearing will probably degenerate into a political circus, given the theatrics at the first round of hearings even before a charge of sexual assault was on the table. The Democrats have conducted themselves disgracefully throughout this process, with their handling of this charge a new low and new depths sure to follow. But a public airing was unavoidable, certainly once both Kavanaugh and his accuser said they were willing to testify. We hope Republicans don’t blink from asking Ford tough questions about her account, even though such due diligence will be portrayed as rank sexism by Democrats and the media.
Absent any compelling new evidence that backs up the charge, we continue to strongly support Kavanaugh’s confirmation. We believe he’d make an excellent justice. In such a case, when emotions are high, a healthy republic should hew to basic principles of fairness. A good man and deserving judge should not be barred from the high court because of an unproven and almost certainly unprovable accusation of wrongdoing.
.. Andy: Our ace on this matter gives a thorough history lesson on the Democrats’ politicizing of the SCOTUS-nominee process (exclusively for GOP nominees!). From his savaging:
Justices Ginsburg and Breyer were well qualified. But, of course, so had been Bork and Thomas. Because they were Democrats, however, Ginsburg and Breyer sailed through. The two things Democrats and Republicans have in common are 1) abiding respect for the personal integrity and legal acumen of Democratic judicial nominees and 2) effective acceptance of the Democrats’ claimed prerogative to “Bork” any Republican court nominee, no matter how impeccably credentialed, no matter their obvious integrity.
.. Republicans have defeated Democratic nominees, but they never Bork them. They never demagogue Democratic nominees as sex offenders, racists, or homophobes. There are no “Spartacus” moments.
.. Even when Republicans are put off by a Democratic nominee’s progressive activism, they seem apologetic, quick to concede that the progressive in question adheres to a mainstream constitutional philosophy — one that is championed by leading American law schools and bar associations because it effectively rewrites the Constitution to promote progressive pieties.
.. Old GOP hands then typically vote “aye” while mumbling something about bipartisanship and some “presumption” that the president is entitled to have his nominees confirmed (a grant of deference that Democrats do not reciprocate, and that actually applies only to offices in the executive branch that exercise the president’s own power, not to slots in the independent judicial branch).
Even in 2016, when Republicans blocked Merrick Garland, President Obama’s late-term gambit to fill the vacancy created by the titanic Justice Antonin Scalia’s death, there was no besmirching of Judge Garland’s character. It was pure political calculation and exactly what Democrats would have done if roles had been reversed (minus the character assassination).
.. In substance, she “deliberately misled and deceived” her fellow senators, with the “effect of impeding discovery of evidence” relevant to the performance of their constitutional duties. No one should know better than Feinstein herself that such deceptive and obstructive conduct, widely regarded as “unacceptable,” “fully deserves censure,” so that “future generations of Americans . . . know that such behavior is not only unacceptable but also bears grave consequences,” bringing “shame and dishonor” to the person guilty of it and to the office that person holds, who has “violated the trust of the American people.” These quoted words all come from the resolution of censure Feinstein herself introduced concerning President Bill Clinton’s behavior in connection with his sex scandal. She can hardly be heard to complain if she is held to the same standard.
Comparison with other past censure cases only makes Feinstein’s situation look worse. The last three senators censured, Thomas Dodd, Herman Talmadge, and Dave Durenberger, were all condemned for financial hanky-panky: converting campaign contributions to personal use and the like. They were all found to have brought the Senate into “dishonor and disrepute” even though nothing they had done implicated the Senate’s performance of its constitutional duties. Feinstein, in sharpest contrast, sought to keep her committee from timely and properly investigating an apparently serious charge of misconduct, and is still doing so, even in the face of criticism from all (or most) quarters.
How Strong Does the Evidence Against Kavanaugh Need to Be?
Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him.
.. It’s natural to place this sort of accusation within a criminal-justice framework: the burden of proof beyond a reasonable doubt; the presumption of innocence; the right to confront and respond to an accuser. If Judge Kavanaugh stood criminally accused of attempted rape, all of that would apply with full force. But those concepts are a poor fit for Supreme Court confirmation hearings, where there’s no presumption of confirmation, and there’s certainly no burden that facts be established beyond a reasonable doubt... The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee... Nominations have failed — that is, been withdrawn or voted down — for various reasons. Sometimes it’s because a majority of the Senate rejects a nominee’s vision of the Constitution and the role of the court. That was the case with Judge Robert Bork, a Reagan nominee whose skepticism about the Constitution’s protection of privacy and liberty convinced a majority of senators that he was simply too conservative and too far out of the mainstream to be confirmed.Other nominations have been unsuccessful because of private conduct. Another Reagan nominee, Judge Douglas Ginsburg, withdrew from consideration after the press uncovered reports of marijuana use that the F.B.I. had failed to unearth.
And the Senate blocked President Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice after evidence emerged that as a sitting member of the court, Justice Fortas had also been serving as a de facto adviser to President Johnson, and after questions were raised about the propriety of outside payments he had received while on the court.
.. This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.
.. In this way, the accusations against Judge Kavanaugh are directly connected to his ability to perform the job.. In an era of meager faith in public institutions (Congress’s approval ratings hover around 17 percent), the relative trust in the court is a striking and important fact. But even more than a heartening fact, it’s critical to the court’s functioning: The public’s perception of the court as legitimate is in many ways the source of its power.Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.
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.
— “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.”
.. There’s no question that Newt Gingrich was an important figure, but he was an inevitable important figure. If Gingrich hadn’t ended Democratic dominance of the House, someone else would have. There were tensions in the Democratic coalition that could not be avoided. The Democratic hammerlock on the House was out of step with the composition of the American electorate. The tidal forces of cultural conflicts launched decades before were going to tear apart Congress in the same way they’d torn apart campuses and caused conflict at kitchen tables.So, no, Gingrich didn’t break American politics. But he did help break a progressive monopoly on the House, which the GOP has controlled 20 of the 24 years since. And given the aggression and incivility they overlook on their own side, it’s clear that for many commentators on the left, ending Democratic dominance is Gingrich’s truly enduring sin.