As of this writing, the futures market deems it exactly a 50-50 proposition whether Brett Kavanaugh will be confirmed. My hope, of course, is that he will not: this man quite evidently — anad in several different ways — is not the sort of person who should sit on the highest Court.
But there is a conceivable scenario in which his confirmation by the Senate now would become, but a few years down the line, a case of sweet poetic justice that would nullify the conservative Court majority that the Republicans have achieved through their indefensible theft of a Supreme Court seat two years ago.
What might prove possible — I am not asserting it to be probable — is that the Democrats, when back in power, might have a defensible basis and the political means to remove Kavanaugh from the Court.
The defensible basis would be that the Senate, in this confirmation process, did a manifestly inadequate job of investigating important questions regarding Kavanaugh’s character entirely pertinent to his qualifications for the seat on the Supreme Court to which an irresponsible GOP proceeded to confirm him for purely partisan reasons.
These questions of character would include both the charges of sexual assault from his youth, which — in the rush to push his confirmation through — the Republicans refused to ask the FBI to investigate, and the questions about Kavanaugh’s repeatedly committing perjury repeatedly to the U.S. Senate at his various confirmation hearings, some of which were ignored by those Republicans this time around, and others of which could not be examined thoroughly because of the refusal of the Republicans to provide tens of thousands of documents from Kavanaugh’s time as a political player in a previous Republican administration.
Justice Abe Fortas was compelled to resign from the Supreme Court (at the end of LBJ’s presidency) for far less. Kavanaugh would not resign, but would have to be impeached. This could only happen if the Democrats have the power to bring this about.
Specifically, this scenario of poetic justice would need to await the election of 2020. At that time, the Democrats would have to continue a Blue Wave in a Senatorial election which will put a great many Republican seats up for grabs — all those who won back in the GOP landslide year of 2014. And the Democrats would have to win the Presidency in the first presidential election since the disastrous Trump victory of 2016.
It has been argued that Democrats need to “play dirty” to save America. I don’t like the idea of the Democrats sinking to the level of the GOP of recent years. But I do like their fighting with the intensity and determination to win that these times require.
Impeaching Kavanaugh would not be playing dirty, but it would be playing an unprecedented kind of hardball. But given both the way the Republicans blocked President Obama from performing his constitutional role in 2016, by refusing to consider any nominee he might put forward, and the way they’ve tried to ram the Kavanaugh nomination through, the Democrats’ removing Kavanaugh by impeachment if/when they gain the power to do so seems to me entirely justified.
At this point, of course, Democrats have no such power either in the Senate or in the White House. But that doesn’t mean that nothing can be done now to set the stage for the possibility of the scenario I’ve just described:
The Democrats involved in this confirmation process should declare, quite clearly and loudly, so that the American people can hear them: 1) what have been the serious defects of this confirmation process as the Republicans have conducted it; and then 2) their intention to rectify those defects in the future.
The Democrats should say something like: “The Republicans have conducted an unacceptable confirmation process. There are important matters that they have refused to investigate the way questions clearly require. But you Republicans be warned: if you ram this nominee through, when the American people give us the means to do so, we will investigate these serious questions properly.”
The Democrats can find defensible and persuasive ways of putting down a marker that puts into public awareness the idea that “this is not over.”
A few months ago, I referred to an old Sufi/Chinese tale whose point was that it is not always clear what constitutes “good news” and what’s “bad news.” It all depends on the consequences that ensue, which will unfold in ways that we cannot foresee.
The confirmation of Kavanaugh would surely be “bad news,” in some obvious ways. But a scenario can be envisioned in which such a regrettable outcome can be channeled into a “good news” ending. And with that hope, then if the effort to block Kavanaugh does not succeed — a 50-50 proposition — the groundwork can be done now to make possible the transmutation of any Republican “success” now into the sweetest reversal of fortune later, with the taking back of that Court majority that was stolen from us two years ago.
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