Kavanaugh And Supreme Court: No Way Out For U.S. Culture War?
WASHINGTON — When Christine Blasey Ford accused Judge Brett Kavanaugh of sexual assault last month, she did more than open herself up to unwanted scrutiny. She held up a mirror to a country in crisis, revealing its political players and embattled institutions not for what they claimed to be but for what they really are.
The painful 20-day passion play that followed — staged in committee rooms, Senate floor debates, hallway protests and millions of private conversations — did little to alter the future makeup of the Supreme Court. Kavanaugh was narrowly confirmed Saturday by the Senate, 50-48, in a vote that tracked expectations from the summer, with only one Democrat and one Republican defecting from the party line.
But few of the players emerged from the process unchanged or unblemished, underscoring the uncharted territory of deepening distrust and polarization that now defines the American system. The events further distanced the Senate Judiciary Committee from its nearly forgotten bipartisan traditions and raised new questions about the potential for the Supreme Court to maintain an independent authority outside the maelstrom of politics.
Public denunciations of the continuing slide were frequent and bipartisan, while political strategists and lawmakers raised new alarms about the ominous implications. Even top Republicans were downbeat on Saturday afternoon as the vote neared, cognizant of the cost of the political and cultural reckoning that had been sparked alongside the confirmation process.
"There is a split culturally, spiritually, and socially," said Republican Sen. John Neely Kennedy, who served on the Judiciary Committee and supported Kavanaugh. "It has to do with the pace of change more than anything else. There are some Americans who would like to see our country change quickly."
Sen. John Cornyn, the second ranking Republican, attributed the divisions in Washington to wounds inflicted by Donald Trump's election in 2016, which he said "half the population can't seem to get over."
Should Democrats win the House majority, as now appears likely, there will be a major push among some members to impeach both Kavanaugh from the high court and Trump from the presidency, all as special counsel Robert Mueller III is expected to finish parts of his work on the federal probe into Russian interference in the 2016 campaign.
That whirlwind on the horizon has leaders in both parties anxious about how bitter national fights could escalate as Trump lashes out at his opponents and the 2020 presidential race heats up later this year.
"The scar tissue will be thicker, the poison stronger, and the well of distrust deeper," said Republican strategist Michael Steel, a former adviser to Speaker John Boehner.
Other Republicans see more fundamental cracks with historic connotations.
"This is the second most divided time in our history and I'm worried about the legitimacy of the court," conservative commentator William Bennett said, comparing the current moment to the breakdowns that preceded the Civil War.
"You have a growing number of liberal critics saying that Kavanaugh would give the court two people credibly accused of sexual harassment," he continued, "and they're now making noise to the effect that maybe the court's decisions will lack legitimacy."
There is a real question of whether we can all move forward.
Democrats are beleaguered by Trump's relentless combat, the White House's tight grip over the FBI's probe of Ford's allegations, and fear that the institutional seams of the nation are fraying by the day as they try to rally their voters ahead of November.
"There is a real question of whether we can all move forward amid these cultural and human challenges and the raw partisanship," Sen. Richard Blumenthal, D-Conn., said in an interview. "The damage will be enduring to the court and the country."
Under the pressure of these divisions, no public official has been able to rise above the fray to chart a path forward toward greater national unity and mutual understanding. Moral outrage has been accepted as the basic currency of political debate, opponents regularly attack each others' motives along with their positions, and honest reflection, when it cuts through the maw, is often dismissed as a sign of weakness or posturing.
Kavanaugh himself publicly dropped his own carefully constructed facade as a nonpartisan and independent jurist, with an angry display in prepared remarks on Sept. 27 that impugned the motives of Democratic senators and included an unsubstantiated claim that his opponents were seeking revenge against him "on behalf of the Clintons." He later backtracked from the outburst, as legal scholars warned the statements could imperil his ability to rule on cases with partisan implications.
"I said a few things I should not have said," Kavanaugh wrote in the Wall Street Journal, though he did not say exactly which things he regretted.
President Trump similarly gave up on his initial effort to provide a respectful platform for Ford's story to be heard, reverting in the final week to familiar - and false - personal attacks on her and her supporters coupled with refrains about the danger the #MeToo movement poses to men. "It's a very scary time for young men in America when you can be guilty of something you may not be guilty of," he said.
His advisers praised his initial restraint as a sign of an unrecognized self-control, while also heralding Trump's subsequent approach to the crisis. Once again, he sought to foment the anger of his supporters and direct it at his political opponents.
"The president is breaking the norms and Kavanaugh gets it," said a Trump adviser who was not authorized to speak publicly. "When everything is coming at you, you don't cry. You've got to be like Trump and roar back at opponents."
Democratic strategists tracking polls in Republican-leaning states where Democratic senators are running for reelection said they were surprised by the apparently galvanizing impact Trump's offensive had on his base. Brian Fallon, a former adviser to Hillary Clinton who ran Demand Justice, a group opposing Kavanaugh, said the support for the judge increased in these states after Trump changed tactics.
As a result, Fallon said he has begun to reevaluate one of the dominant analyses of the 2016 election, which held that Trump was elected despite evidence of his sexual misconduct against him, not because the resulting controversy motivated his voters to the polls.
"I feel like there was a primal scream-type reaction from the Republicans' overly white, overly male base," Fallon said of the response to the Kavanaugh controversy. It may have been a repeat of the reaction in the fall of 2016, when a recording from "Access Hollywood" showed Trump boasting of sexual assault. "Very few people were willing to grapple with the idea that it may have had a galvanizing effect that further polarized the country," Fallon said.
Without direct corroboration of the claims of sexual misconduct by Kavanaugh made by Ford and other women, Americans from the halls of Congress to the kitchen table were forced to fill in the blanks themselves.
Public polling showed they did so by overwhelmingly falling back on their political identities, a tribal response that tracks other evidence of increasing polarization. An August Pew poll found 78% of Americans say Democrats and Republicans disagree not only on "plans and policies' but on "basic facts."
After both Ford and Kavanaugh had testified before the Senate about the alleged high school assault, 86% of Democrats told Quinnipiac pollsters they believed her account, compared to 84% of Republicans who said they believed Kavanaugh. Women, who increasingly identify with the Democratic Party, were more likely than men to side with Ford.
"Republicans looked at it and saw two individuals whose competing credibilities should have determined if a qualified constitutionalist shouldbe denied a seat on the Supreme Court," said Alex Castellanos, a GOP political consultant. "Democrats looked at it and saw women's long journey to independence and to freedom from the constraints of their gender."
Those differences are likely to provide significant support this fall for Democratic House candidates, who have clear opportunities to pick up Republican seats in more moderate rural and suburban districts where college-educated women hold sway.
Anger lasts a lot longer than satisfaction as far as a voting motivator.
Democrats privately argued that Kavanaugh's success could provide benefits at the ballot box. "I think anger lasts a lot longer than satisfaction as far as a voting motivator," said a senior Senate staff member, who requested anonymity to discuss the politics of the nomination.
Republicans, who are hopeful the controversy could help them in Republican-leaning Senate contests, said they also thought the effect on Democratic turnout would be minimized by the fact that these same voters were already far more enthusiastic to vote in the midterms than Trump's base.
"Republicans should go into every red state and confront Democrats and ask, "Will you commit to not impeach Kavanaugh?"" former Republican House Speaker Newt Gingrich said. "Keep them on defense. Remind people of how rabid these people are."
Conservative activists, meanwhile, have celebrated the last weeks, both as a victory in the war for direction of the high court and an effort to reframe the #MeToo effort as an overreaching assault on men, some of whom are wrongly accused.
"We have been winning little victories with regulation. This is the big win," Americans for Tax Reform President Grover Norquist said. "We are cutting down the forest, not the trees."
He said Kavanaugh's position on the high court would weaken the Democratic Party by further rolling back legal precedent that empowered labor unions, a major source of funding for the left.
On Fox News — which is watched daily by Trump and whose former executive Bill Shine currently serves as the president's deputy chief of staff — rhetoric has gone from partisan to biblical about the stakes.
"Crucifixion was an important event because it was designed to establish a wall between justice and mob rule - Christ died so that the mob wouldn't survive," Fox News anchor Greg Gutfeld said this week, adding that with the Kavanaugh nomination, Democrats have "decided to crucify someone once again."
Grievances about gender and race on the network have been prevalent. A prime time host, Laura Ingraham, tweeted that the focus on the lack of corroborating evidence behind Ford's accusation could herald "the #YearoftheMan."
"This is the world in which we now live in, in which white men are presumed guilty because they are white men, because they are supposedly in a position of privilege," writer and podcaster Ben Shapiro said on Fox News.
Such rhetoric, which has been countered on the left with the #BelieveWomen hashtag and angry confrontations at the U.S. Capitol, frames the complex debate over the prevalent problem of sexual assault as a binary choice, with both sides casting themselves as victims of bigoted opponents operating in bad faith. As a result, the public space for reaching common ground, a basic starting point for a functioning democracy, has diminished.
On Capitol Hill, the planned overhaul of harassment rules in Congress remains stalled. Even the proper response to evidence of misconduct is now a subject to debate. Then-Democratic senator Al Franken of Minnesota, resigned in January following allegations of misconduct, including a photograph of him groping at the chest of a sleeping woman, and a bevy of House members, both Republicans and Democrats, have also left office following allegations.
Trump ridiculed Franken this week at a rally in Minnesota, saying he folded "like a wet rag" and was "wacky."
"One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom," Maine Republican Sen. Susan Collins said Friday, when she announced her decision to support the judge, despite finding the testimony of Ford to be "sincere, painful and compelling."
She was repeating a phrase - "rock bottom" - that Judiciary Committee Chairman Charles Grassley, an Iowa Republican, had used a day earlier as he angrily lambasted the press for bias he believed it had shown in its reporting on Kavanaugh, by choosing to interview more supporters of Ford than Kavanaugh.
As he made his way into the chamber Saturday, retiring Republican Senator Jeff Flake, repeated the sentiment. When asked why he and others kept using that phrase, Flake grimaced and said, "Because it feels like we are at the bottom."
What no one could offer was a credible path up out of the abyss.