It's the Supreme Court, to which Kavanaugh was appointed by 45 and confirmed only after allegations of sexual misconduct dating back to his college years. Let's be clear here: Democrats on the Senate Judiciary Committee performed poorly about this tawdry issue, especially ranking member Dianne Feinstein of California. Had she processed Professor Christine Blasey Ford's concerns in a more timely fashion, and made the accusations public while doing so, much of the intervening, crushing, and horribly distracting last-minute drama surrounding the investigation--the official part of which was manipulated into sketchy irrelevance due to time factors arranged by the exasperated, over-the-top furious Republican majority, but for which, considering Democratic dithering, they cannot be held completely responsible (Yes, I know they could have allowed more time for deeper investigation, but the scope was out of their hands, and further delays would have been interpreted as weakness, something even the appearance of which cannot be countenanced by 45, who would have insulted the hell out of them, too)--might have been avoided and allowed to proceed reasonably. In fact, early exposure of the issue may have begun the MeToo outcry far sooner, which might have also been allowed to build momentum for more than the two weeks in which all this came to a head. Who knows: 45 might have even considered getting someone else--except that might easily have been another hyper-conservative with fewer ethics issues.
In hindsight, it now appears to be a desperate measure on the part of Senate Democrats to ward off someone who lied to the same committee upon his appointment to the DC Appellate Circuit, perhaps the most prestigious and the major gateway to Supreme Court consideration, in 2006. There was no question that 2018 Republicans, inured and numbed to 45's constant, non-stop lying about nearly everything else, would be giving Kavanaugh a pass, and accomplish what they have been lusting for for about three decades now: a hyper-conservative majority on the Supreme Court, so they can railroad their major policy bellweathers (i.e. gutting abortion rights, jettisoning gay rights, firming up the status of corporations as people) into immutable law, at least for a generation or two, with all the efficiency of an assembly (or perhaps, disassembly of liberalism) line. Besides, with the earlier appointment of Neil Gorsuch instead of Merrick Garland, the Obama appointee who had been unprecedentedly stonewalled by Senate Majority Leader Mitch McConnell's refusal to even hold hearings for him, Senate Democrats were spoiling for a fight.
Much of this appears to be orchestrated a little too well, though. Outgoing Justice Anthony Kennedy's son reportedly did much business with 45's folks in German banks, and Kennedy apparently had discussions with 45 concerning his retirement before doing so. Those 'coincidences' seemed a little too pat. Nonetheless, it gave even the bumbling 45 an opportunity to line up exactly the candidate he wanted and muscle him through.
But not without a temper tantrum on Kavanaugh's part. Insensed that his nomination might be thwarted, he took the clear advice from 45's people and counterattacked with obnoxiously loud exaggerations and invectives, including the very interesting posit that girls' basketball coaching was the true love of his life and that, because of the accusations, he might never do it again (a claim later found to be as ridiculous as the moment he uttered it). It sounded quite like he would rather do that than be on the high court--in which case, I kept thinking, he did have another, very important job, so no one was contemplating throwing him and his family out onto the street.
Nevertheless, he acted in ways completely unlike the manner in which a Supreme Court candidate should. Was it an indication of how he would conduct himself inside the Court's determination discussions? Would he try to yell at the female members to assert himself? Those questions were suddenly quite relevant. For there Kavanaugh was, completely unglued, throwing insults around the room (and the country, watching with both stubbornness and revulsion) demanding instead of asking that all evidence aside, he be put on the Supreme Court with all of the other relevant and qualifying boxes checked.
On he went, having changed no one's mind about anything. Votes by straddlers seemed to be based on solely political terms, their wet index fingers held up to the breezes. The superficial investigation constituted a firewall by which they could hide behind, claiming that they couldn't rely on rumors and needed to decide the issue based on established facts.
The hubbub wasn't quite finished, though. Chief Justice John Roberts received a complaint from a group of lawyers and other professionals that Kavanaugh had acted so unethically that his very status be reviewed by the Court itself. The Judicial Council of the 10th Appellate Circuit--not Kavanaugh's in DC; this one's seat is in Denver--was given the task of going over some eighty-three accusations, including:
- making false statements during his confirmation hearings;
- displaying a lack of judicial temperament;
- making inappropriate partisan statements; and
- treating members of the Senate Judiciary Committee with disrespect,
the totality of which smothers the impact of a drunken moment of stupidity that--let's face it--many of us had during our college years (but which doesn't excuse it for a minute).
That set up the final firewall of any consideration of Kavanaugh's eligibility for the high court. That council determined that, because Kavanaugh was now on the Supreme Court, it no longer had the authority to even review his conduct, much less rule upon it. So that was that, and we move on.
Roberts had to know--he had to--that the Council would rule that way. He succeeded, then, in pigeon-holing the ethics of examining Kavanaugh's ethics. In issuing his response, Roberts noted that while federal judges, whose positions are created by Congress, adhere to codes of conduct, it is different with members of the Supreme Court, which is created by the original Constitution. He didn't mean to imply that Supreme Court members are inoculated from ethical behavior--quite the opposite--but that they do so voluntarily. Congress simply isn't allowed to impose standards on Supreme Court justices, he said, because that would violate the separation of powers.
I disagree. Our flexible system allows Congress to make adjustments to the president's powers, doesn't it? Wasn't that what the War Powers Act was about in 1973? Granted, succeeding presidents have disputed the constitutionality of the act, but the Supreme Court hasn't thrown it out yet, and we're going on forty-six years now. If Congress can do that to one branch of government, what prevents it from acting reasonably toward the other?
Besides, the Constitution itself says that justices will serve "during good behavior." The specifics of that aren't and never have been spelled out, but the violation of which constitute grounds for impeachment and removal (done four times in our history). Would it be so harmful for Congress to create guidelines for those grounds? Might it be appropriate to clarify actions that are grounded in law and not nearly as much in politics (though politics are unavoidable)? Would that necessarily throw the balance of power too greatly into the lap of Congress?
Granted, it may cause a challenge in the very Supreme Court that Congress would seek to regulate, and the ethics of that would be perpetually unavoidable and debatable. Perhaps it is time to investigate these possibilities, though. While we prefer to believe that the Supreme Court adheres to a higher standard, lacking guidelines to those standards do not and will not insure that the standards be met. Rather that, than an already controversial and narrowly-approved Supreme Court justice be allowed to use the Court itself as a safe haven by which to escape accountability for actions that mar and have the effect of compromising--perhaps not in his mind but in our minds, regardless of his protestations to the contrary--his very membership. If the courts do not believe they can or even should police themselves, the simple logic not of the separation of powers, but of checks and balances, demands that someone do so. Remember: This appointment is for life.
Be well. I'll see you down the road.
Mister Mark
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