The fix is in, as it was always going to be. The week-long FBI investigation into Brett Kavanaugh was neither a week long nor an investigation, but it was the FBI, and Susan Collins and Jeff Flake are willing to claim it was thorough. The moderates of the Senate asked that the FBI be given time to look into the question of whether Brett Kavanaugh drunkenly sexually assaulted one or more women, because it was such a serious concern, and the FBI has declared itself satisfied, so their concern has been resolved.
It still seems likely that Brett Kavanaugh drunkenly sexually assaulted at least two women, and the evidence overwhelmingly says he lied under oath about his drunkenness and other circumstances surrounding the main accusation. But those are not the issues anymore.
A running theme in the right-wing backlash defending Kavanaugh is that the nominee’s opponents keep moving the target. Now, they say, Kavanaugh’s foes want to stage an inquisition into a teenager’s drinking habits, or the inside jokes he put in his high school yearbook, or a bar fight in college for which he was not charged with any crime. How can these tiny, petty details be what would keep a man off the Supreme Court?
Kavanaugh’s supporters are not wrong that the details are tiny, or that they’re much too small for the question of whether Kavanaugh should be on the Supreme Court. They’re just being dishonest about how the question got so small. The question got so small because the Kavanaugh partisans successfully pushed all the larger questions out of the way.
So now, as the vote comes up, the members of the center-right flank of the Senate Republicans have reduced all the issues to this: Has the FBI proven, beyond doubt, that Kavanaugh tried to rape Christine Blasey Ford in the summer of 1982?
If not—well, if not, then what? Then Kavanaugh’s lies and deceptions under oath, and his shouting conspiratorial partisan denunciations, are…well, not the noble outrage of a wrongfully accused man, no, the evidence still isn’t there to support that, either, is it? Kavanaugh’s tantrum startled the American Bar Association, the Yale Law establishment, and even a couple of his own clerks into declaring him unfit for the job. But the moderates can tell themselves that’s all beside the point, the new point, the point they settled on after weeks of other points.
Yet those other points are still there. The Democrats, the angry Republicans say, have always wanted to keep Kavanaugh off the court. This is accurate. Liberals and leftists oppose Kavanaugh because he would replace Anthony Kennedy—an obtuse and generally Republican justice, who was nevertheless sometimes swayable in the name of justice or precedent—with a committed partisan who is bent on sharply changing the longstanding terms of the law.
This doesn’t mean that the Democrats can’t also oppose Kavanaugh because he covered up his ideological and partisan paper trail; or because he spent years as a ruthless political operative, who received hacked emails from the Senate and lied about it; or because under questioning in his hearings he showed contempt for the very idea that senators had the right or duty to ask him about his record. All of those, along with the sexual assault and the yelling about being persecuted by the Clintons, are additional reasons for wanting him not to be on the Court.
And none of that grants the moderate Republicans permission to duck the main question. Installing Kavanaugh would create a bloc of five justices on the extreme right wing, who would not hesitate to overpower the other four justices and overturn precedent. Why would a political moderate sign off on that, when any two of them have the power to insist on a nominee closer to the center?
Early on, there was a lot of discussion about where Kavanaugh stood on Roe vs. Wade. His position on it was evasive and stonewalling: consistently dismissing all questions by saying it was precedent, refusing to engage with the question of whether it was a precedent he would overturn.
Susan Collins, as a pro-choice Republican, had declared herself satisfied before the hearings even began. The loopholes seemed obvious: Kavanaugh could rhetorically preserve Roe, while endorsing every abortion restriction that comes before the court, or he could vote to throw the whole thing out, after all, as would be his prerogative as a lifelong appointee. It’s a matter of whether he should be trusted with that ability.
And Roe is, as the now-unexamined cliche goes, a litmus test. It’s not that the only issue that matters is a justice’s position on reproductive rights, but that a justice’s position on reproductive rights indicates how far that person may be willing to go, overall. That is, “moderate” is not shorthand for a senator who supports Roe; supporting Roe is one of the positions a senator holds if that senator is moderate.
Reducing moderate politics to abortion also unfairly and misleadingly narrows the discussion down to Collins and Lisa Murkowski, the two women in the set of senators whose votes might be changeable. Other members, such as Jeff Flake, have their own defining issues, such as concern about the unchecked power and corruption of Donald Trump.
Here is where the ever-moving target of the Kavanaugh confirmation process has truly scuttled the farthest away from any senator taking responsibility. And the Democrats are not the ones who’ve been moving it.
The president of the United States is under investigation for a wide range of financial and political crimes and abuses of power. There is a solid case to be made, on principle, for refusing to allow a president in this position to appoint anyone to the Supreme Court, on the grounds that the appointee would inherently have a conflict of interest when the president’s troubles came before the justices.
In Kavanaugh’s case, though, the question of holding the president accountable is not even theoretical. As a general ideological principle, he supports expansive presidential power, ideally unchecked by anything short of impeachment. When it comes to loyalty to this specific president, he showed his position the moment Trump introduced him. The first thing he did as the nominee was to flatter the president for having picked him, in flagrantly false terms. It never gets less humiliating to read:
Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.
For anyone concerned about the president’s impunity, that display of submission ought to have settled it. The confirmation process would have ended the moment it began, with the biggest question of all: Is this person going to defend the Constitution, or is he going to defend Donald Trump? The supposed moderates all know the answer; the rock-ribbed conservatives who talk about statesmanship and duty know the answer; their scheming leader Mitch McConnell knows the answer.
Jeff Flake, fretting about discord tearing the country apart, knows it. Ben Sasse, making purple speeches about integrity and decency, knows it. Chuck Grassley, spluttering about character assassination, knows it. It’s no secret what Brett Kavanaugh is anymore, or what he’ll do if he’s on the Supreme Court. The only remaining question is what reasons they’ll give for pretending not to know it.
