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.”

What Doesn’t Kill Him Makes Him Stronger

The more Trump lies, the more he is empowered to lie.

Facts don’t matter to millions of Americans anymore. That is just the truth. Republicans bewitched by Donald Trump have devalued the import of truth.

It is a sad truth and a dangerous one. What is the operational framework of a society when the truth ceases to be accepted as true?

There may be precedents in other countries, but one would be hard pressed to find a precedent here. It is becoming cliché now to say that we are in uncharted territory with Trump and his regime, but that is precisely where we are.

.. Every day there is no catastrophe, every day yet another never-before-seen, outrageous scandal emerges from this administration and Trump is not destroyed by it, it strengthens him and numbs us and steels his supporters.

The more he lies without paying a price for it, the more he weakens the power of the truth to defend right and condemn wrong. And he expands his latitude to lie more.

.. Rather than lying less, Trump is increasing the frequency of his lying.

.. Trump has gone from making 4.9 false claims a day to now making 6.5 a day.

.. “Just stick with us, don’t believe the crap you see from these people, the fake news,” before telling them, “Just remember, what you are seeing and what you are reading is not what’s happening.”

.. he has used the power of the position to project a sort of hypnotic disregard and amnesiac self-delusion upon the people who follow him. So much of what Republicans once said they believed has now been betrayed.

.. He boasts about being strong while simultaneously whining about being assailed.

.. His griping, in a weird way, is what fuels his gasconade. He insists to his supporters that he is being treated unfairly and their reflexive defense of him prevents them from even entertaining the fairest of criticisms.

Indeed, the more Trump is rebuked by his opponents, the more his base rallies.

.. Among [Republicans], 64 percent strongly approve of Trump, who is experiencing an almost unheard-of level of support from members of his own party.”

.. The White House had previously denied any knowledge that McDougal had even sold her story. That clearly was a lie. Trump not only knew; he was discussing buying it from the seller.

.. Rather than cowering in shame at his deception and his unseemliness, Trump simply goes on the attack, tweeting outrage and indignation

.. We are all trapped, for the time being, held hostage by

  • an empowered president,
  • a self-neutered Congress, and a
  • cultish horde of Trump voters.

But it is the vote that is the most likely way to curb this rolling tragedy. The midterm elections are only a little more than 100 days away.

George W. Bush comes out of retirement to deliver a veiled rebuke of Trump

Bush offered a blunt assessment of a political system corrupted by “conspiracy theories and outright fabrication” in which nationalism has been “distorted into nativism.”

..  “Bullying and prejudice in our public life sets a national tone and provides permission for cruelty and bigotry. The only way to pass along civic values is to first live up to them.”

.. Just hours after Bush completed his speech, Obama also made a veiled critique of the Trump era, calling on Democrats at a New Jersey campaign event to “send a message to the world that we are rejecting a politics of division, we are rejecting a politics of fear.”

.. That Trump’s two most recent predecessors felt liberated, or perhaps compelled, to reenter the political arena in a manner that offered an implicit criticism of him is virtually unprecedented in modern politics, historians said.

.. George W. Bush was taking aim at Trump’s “roiling of the traditional institutions of the country and, in particular, demeaning the office of the president by a kind of crude or vulgar bashing of opponents,”

.. “I think this is Bush throwing down the gauntlet and feeling that this is a man who has gone too far,” Dallek said. The discretion former presidents traditionally afforded their successors “is now sort of fading to the past because of the belligerence of Trump.”

.. McCain’s critique prompted Trump to warn him to “be careful” because he is prepared to “fight back.”

.. The common thread among Bush’s and McCain’s words was a defense of the post-World War II liberal order

  • which supported strong security alliances,
  • a defense of human rights and an
  • open economic system of free trade

.. “The hallmark of McCain’s and Bush’s speeches was to try to re-center us on what have been, since 1945, these traditional ends,”

.. He cautioned at the time, however, that he would speak out if he saw “core values” at risk.

.. the unifying themes between Obama and Bush are “humanity and empathy towards the American public.”

.. Bush opened his remarks by speaking in both English and Spanish and noting that refugees from Afghanistan, China, North Korea and Venezuela were seated in the audience.

.. Bush also warned that “bigotry seems emboldened” in a passage that evoked the aftermath of the white supremacist rally in Charlottesville

.. “Bigotry or white supremacy in any form is blasphemy against the American creed,” Bush said in a line that drew the most applause.

.. “Politics are now about discrediting people by ad hominem attacks, not by argumentation,” Cohen said. Those who opposed Bush’s wars have a fair point of view, he said, but their constant “demonization does help make it easier for Trump.”