Brett Kavanaugh Can Be Saved. Things Don’t Look So Good For The Supreme Court Though.
A new FBI probe may give us more answers about the nominee’s past. It won’t change the divisiveness around his nomination.
Sen. Lindsey Graham (R-S.C.) entered the Dirksen Senate office building on Friday morning a man both jubilant and exhausted. Just a day prior, he’d become the toast of conservatives after delivering a blistering, rancorous speech demanding the confirmation of Brett Kavanaugh.
Saving Donald Trump’s Supreme Court nominee and becoming the pride of the president was thrilling, Graham acknowledged. But it was tiring as hell too. And his gait—the slightly-forward slouch, the heavy breathing that accompanied his staccato walk through the still-empty halls, his jacket drooping off of his low-hanging shoulders—suggested that even he, one of Congress’ more gregarious members, was ready for it all to end.
“I’ve never met a finer man and if you believe he is a rapist, then that’s your problem,” he said of the nominee, whose fate looked assured in that moment.
Except, it wasn’t assured at all.
Hours later, Graham joined ten other Republican members of the Senate Judiciary Committee to push Kavanaugh through. But not before making a major concession to a fellow committee member, Sen. Jeff Flake (R-AZ), to allow the FBI to investigate allegations that Kavanaugh had sexually assaulted Dr. Christine Blasey Ford when the two of them were in high school. Hours later, President Trump formally ordered the investigation— “limited in scope and completed in less than one week”— to take place. The nation’s collective angina would last a few more days.
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Republicans and the White House, perpetually exasperated with Flake’s frequent apostasies and finger-wags at Trump, saw the move as exactly the type that a self-serving, retiring senator would make. But in their frustration they also spotted silver linings. If the FBI investigates the allegations and turns up no bombshell, his supporters could move forward with a vote backed by claims that concerns about process—in particular from the Senate’s key Republican swing votes—were adequately addressed.
“I think the timing is intended to make it the Flake show,” a senior Trump administration official said of the senator’s last-minute maneuver. “But I think big picture it's good for Republicans in [the] long run.”
Of course, there were risks too. After all, they’d spent weeks resisting the very type of investigation that they were now allowing to go forward. What if an FBI probe—even a truncated one—led investigators to inconsistencies and factually questionable claims made during Kavanaugh’s testimony? What if it unearthed more ethically-murky issues or false statements he’d made to Congress?
“Part of what an FBI investigation can do is to show whether or not he lied during his testimony or misled the committee,” said one former senior Department of Homeland Security official. “That would also come out in a report and I think that is a very real likelihood."
Looming over it all was the very real prospect that the Senate would simply end up where it left off: a credible but unprovable allegation of sexual assault against a Supreme Court nominee who didn’t just adamantly deny it but insisted it was all part of a Democratic plot to destroy his name and get revenge for the Clintons.
Those aren't exactly uncharted waters. The country went through a similar trauma in 1991 with Clarence Thomas. But it's at the edge of the map.
“I have very deep and strong fears about the moral authority of the Court because it really depends on the credibility and independence of its members,” Sen. Richard Blumenthal (D-CT) told The Daily Beast. “The outburst we saw yesterday from Judge Kavanaugh was so vehemently and viciously partisan that he will be seen as a partisan on the Court.”
For Blumenthal and other Democrats, the FBI investigation is important but also secondary. The debate has drifted beyond Kavanaugh. It was now a question about the future legitimacy of the Supreme Court itself; whether one of the three branches of government would retain a semblance of apolitical credibility in hyper partisan times.
“I think that the fact that the president has made it very clear that he wants the Supreme Court to be a political arm of his administration has already damaged its legitimacy,” Sen. Patrick Leahy (D-VT) said. “Can you imagine the Supreme Court today coming down with a decision with the power of Brown v. Board of Education and having the American people think it’s legitimate, no matter which way they vote?”
Rep. Jerry Nadler (D-NY), who could end up chairing the House Judiciary Committee should Democrats retake that chamber, declined to say if he would use his gavel to conduct oversight into Kavanaugh’s past. But Rep. Elijah Cummings (D-MD), who could take over the Oversight Committee, had no hesitation talking about the hoods under which he would look.
Others had different proposals. Rep. Pramila Jayapal (D-WA), who said she had watched the Anita Hill-Clarence Thomas hearings as a high schooler in Indonesia, suggested that Democrats, should they retake the Senate, raise the threshold for votes it would take to confirm a Supreme Court Justice. The more aggressive operatives in the party have begun pushing the idea of impeaching Kavanaugh, should he end up on the Court.
It is a confrontation that Trumpworld views as a potential public-relations gift.
“I don’t think impeachment should be used simply to send a political message; they shouldn't be lustful or reaching for impeachment, and if the Democrats look like they are using a constitutional tool to play politics with a man they already tried to destroy, I think that will boomerang on them,” Matt Schlapp, the American Conservative Union chair and a Kavanaugh friend who acts as a top Trump surrogate, told The Daily Beast on Friday.
“When the Democrats do stupid things, I generally like that… but [Judge Kavanaugh] is a human being… I guess they don't care about that.”
But it also is reflective of a far more depressing reality. While the fight over Kavanaugh may functionally continue for one more week, it may never actually end. The process has been too tainted; the country too divided; the stakes too massive for things to ever be the same.
“The Court is not going to suffer by having Kavanaugh on it,” Graham told The Daily Beast as he walked through the stairwell and up to the committee room. “What will suffer is the confirmation process in the Senate, which will change forever (by) rewarding this blind-side stuff.”
Asked if half the country would distrust a Court with Kavanaugh on it, he replied: “I think that is probably the case already.”