Thursday, October 18, 2018

The Kavanaugh Kontroversy

by MARK GABRISH CONLAN

Copyright © 2018 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

It seemed weirdly appropriate that when I first heard the name Christine Blasey Ford and the basics of her sexual assault allegations against then-U.S. Supreme Court nominee, and now duly confirmed and sworn associate justice, Brett Kavanaugh, I was in the middle of reading a novel called The Murderer’s Daughter by well-known mystery writer and former child psychiatrist Jonathan Kellerman. It was appropriate because the essence of Blasey Ford’s story sounded like something Kellerman could have made up: a high-school girl goes to a drunken party, gets hit on and nearly raped by a prep-school kid from a family of power and privilege, manages to put the incident behind her and go on to a brilliant academic career — only to have it all brought back to her when the name of her assailant is revealed as a potential appointee to the U.S. Supreme Court.
At the same time I had my doubts about whether the Blasey Ford revelations, or the accounts of other alleged victims of Kavanaugh’s wanton ways in his heavy-drinking teen years, would derail Kavanaugh’s confirmation and eventual service on the Supreme Court. The Democrats had tried the same tactic 27 years ago against Clarence Thomas: unable to defeat a Republican nominee on the ideological and judicial grounds on which he deserved defeat, they dredged up a sexual-harassment allegation against him at the last minute and tried to knock him off the court that way. I remember that my reaction when Anita Hill came forward with her bizarre accusations against Thomas — including laying pubic hairs across her Coke can and boasting about the on-screen exploits of porn star “Long Dong Silver” (who, it turned out, made only two movies, both of which were Gay) — was I didn’t believe her.
I didn’t disbelieve her, either. Frankly, I didn’t know what to think. I had thought that male bosses who sexually exploited women working for them did so in more obvious, blatant ways, waving motel keys in their faces and saying, “Meet me at the No-Tell Motel at 9 o’clock tonight or don’t bother coming in to work tomorrow morning.” Like most of the rest of America, I know a lot more about sexual harassment in the workplace now than I did then. I’ve heard stories that seemed even weirder than the ones Hill told about Thomas. I’ve read about the ludicrous exploits of people like Harvey Weinstein, Leslie Moonves and the other big-name executives in the entertainment industry who’ve been brought down low after decades in which they seem to have been running their enterprises just to attract women they could sexually exploit and demean.
And I’ve seen the downfall of political figures I used to admire — including former Congressmember and San Diego Mayor Bob Filner, who was driven out of office by his fellow Democrats in 2013 — four years before the so-called “#MeToo” movement started. I’ve learned terms like “creating a hostile work environment” and come to understand that women can be made to feel unwelcome in an office even if they aren’t the targets of overt, unprofessional and decidedly unwanted advances from the men they work for. Indeed, it occurs to me that, just as Susan Brownmiller wrote in the 1970’s that rapists were “the shock troops of the patriarchy” — they enforce the social restrictions on where women can go, what they can wear and whom they can associate with, especially after dark, by subjecting them to the fear of rape at all times — much of what’s come to be called “sexual harassment” in work environments isn’t so much one man hitting on one woman as all men using their sexuality to stake out a claim of superiority over all women.
So when Christine Blasey Ford came forward with her allegation that 36 years ago Brett Kavanaugh, then a 17-year-old student at the exclusive and all-male Georgetown Preparatory School, sexually assaulted and nearly raped her at a party in a private home in Maryland while she was a 15-year-old student at a nearby all-women’s high school, I believed her. I believed her because her story had the ring of truth about it. She remembered the incident quite vividly, and while there were a few details she didn’t recall, those actually added to her credibility because they made it far less likely that she was making up the story to discredit Kavanaugh. I particularly believed her because of one detail she did remember in her story, one that showed who Brett Kavanaugh was at 17 and who he still is 36 years later.
Throughout the assault, Blasey Ford told the Senate Judiciary Committee, Kavanaugh and his friend Mark Judge, whom she says didn’t participate in it but was present, laughed. They laughed at the predicament they had put her in. They laughed at her pathetic attempts to fight off Kavanaugh. They laughed as Kavanaugh put his arm across her neck with such force she thought he would accidentally strangle her. They laughed as Blasey Ford was likely saved from a near-certain rape only because she’d come to that party from a swimming practice, she still had her one-piece bathing suit on under her other clothes, and the drunken, fumbling Kavanaugh couldn’t get it off her.
That laughter was the laughter of privilege. It was the laughter of boys belonging to what the late sociologist C. Wright Mills called “the power elite,” the sons of rich men trained from birth to rule over the rest of us. They didn’t have to articulate in words their utter contempt for Christine Blasey Ford’s humanity, autonomy or independence. They told it to her by laughing while Kavanaugh assaulted her and Judge looked on and cheered from the sidelines. Their laughter said, “We are the power elite. We are destined to run the country. We can pick out any woman we want and treat her as a piece of meat, and not only can she not do anything about it, neither can anyone else. We have complete impunity. We can do whatever we like, and no one can or will derail us from the position of power that is our destiny from birth.”
And, judging from Kavanaugh’s confirmation as a Supreme Court justice and the likelihood that for the next 20, 30, 40 or 50 years he will be one of the nine people who decide what the Constitution of the United States means and which individuals (and which racial, ethnic, gender and social classes) it protects, he was right when he laughed.

A Referendum on “#MeToo”

It’s a matter of how fast the news cycle flies that as of this writing (October 18, 2018, 12 days after I wrote the first four paragraphs of this article), Brett Kavanaugh’s confirmation amid the multiple accusations of sexual misconduct against him already seems like ancient history. He hasn’t even heard an actual case as a Supreme Court justice yet, and already the moving finger of the media have moved on to another child of privilege with a last name beginning with “K” — Jamal Khashoggi, a Saudi Arabian expatriate and dissident journalist who two weeks ago was allegedly lured into the Saudi consulate in Istanbul, Turkey and tortured, murdered and dismembered by a 15-person hit squad including Saudi Arabia’s leading forensic surgeon, who came armed with a bone saw.
The Khashoggi incident has shocked the world, not only because it’s ripped off the “reformer” façade from Saudi Arabia’s de facto ruler, Crown Prince Mohammed bin Salman (known colloquially by his initials MBS, which makes him sound like a bank rather than a person) but because it’s been yet another exposé of President Donald Trump’s utter moral bankruptcy. Other Presidents at least pretended to believe in a world of equal justice and human rights, and in America’s unique standing as the country that would call repressive dictators out on their abuses against their citizens. They didn’t always do that — the U.S. participated in covert operations that brought down democratically elected governments in Iran in 1953, Guatemala in 1954, Brazil in 1964, Chile in 1973, and other countries as well, and during the Cold War the U.S. was often quick to blast Left-wing dictators while coddling Right-wing ones — but at least they played the game.
Trump is wide-open about what his priorities are. He wants a world in which leaders are free to rule over their countries’ populations whatever the people might want. He wants U.S. foreign policy to be guided by what will be good for America’s richest individuals and corporations in general, and Donald Trump in particular. From the moment the authorities in Turkey started selectively releasing the evidence that Khashoggi was murdered in their country by 15 assassins on the orders of the government of his country of origin, Trump has said that his real priority is maintaining the $120 billion arms deal the Saudis have promised America and in particular its biggest defense contractors, Boeing, Lockheed Martin and Raytheon.
Indeed, it was Donald Trump who first linked Khashoggi with Kavanaugh when he was interviewed by Associated Press reporters Catherine Lucey, Zeke Miller and Jonathan Lemire on October 16. Asked about the Turkish allegations that Khashoggi was killed by a 15-member hit squad sent by the Saudi government, Trump said, “You know, here we go again with, you know, you’re guilty until proven innocent. I don’t like that. We just went through that with Justice Kavanaugh. And he was innocent all the way. So I was unconcerned.”
“Guilty until proven innocent” has become a mantra for Republicans in dismissing the allegations against Kavanaugh. It’s a strange thing to come out of the mouth of Donald Trump, who in every public statement he’s made on the so-called “Central Park Five” — five young African-Americans who were accused and convicted of beating a white jogger in Central Park on April 19, 1989 — insisted that they were guilty and deserved the death penalty even after they were proven innocent by DNA evidence. But then Donald Trump has always behaved like the ruling Inner Party of George Orwell’s 1984, choosing what “facts” he wishes to believe and showing the same dexterity in performing what Orwell called doublethink — holding two contradictory positions in his mind at once and believing both of them.
Trump told the Associated Press reporters and also 60 Minutes interviewer Lesley Stahl that his toughness on the Kavanaugh nomination, and particularly his sneering mockery of Blasey Ford’s Senate testimony in his rallies, turned the midterm elections around for the Republicans and energized their voter base. “That fight has had an impact on energy, and it’s had an impact on the Republican Party, a very positive one in terms of getting out and voting. I think,” he told the AP. He told Stahl that his attack on Blasey Ford turned the tide and got Kavanaugh approved, and in his public comments not only in these interviews but his speeches Trump seems to be carrying the torch for male privilege against the so-called “#MeToo” movement and its call to end the social tolerance of sexual harassments and assaults against women (and men too!) by powerful males.
For Donald Trump, as for Brett Kavanaugh, being able to treat women’s bodies like meat is just one of the perks of wealth and power. He said so himself when he told Billy Bush in the Access Hollywood tape in 2006 that he could “grab ’em by the pussy” because “when you’re a star, they let you do anything.” When Trump owned the Miss Universe contest, he reportedly strolled into the women’s dressing room any time he pleased to catch glimpses of the contestants in various stages of undress. He’s been personally accused of sexual harassment or assault by at least 16 women — whom he’s called liars and participants in a plot to embarrass him and bring him down politically — and when Kavanaugh was publicly denounced by Christine Blasey Ford and Deborah Ramirez as having sexually assaulted them, Trump identified with Kavanaugh and they bonded even more closely than they had before because Trump saw Kavanaugh as a fellow victim of predatory women out to bring down powerful men.
In this, as in virtually every other aspect of his politics, Trump is a reactionary in the most literal sense. He reaches out to an embattled and shrinking white majority by proclaiming himself anti-immigrant, anti-Mexican, anti-Black and anxious to put women back in their “place” as the homemakers, child rearers and sexual outlets for their men. Trump has become the latest avatar of the Republican Party’s racial and cultural politics that emerged in 1968 when Richard Nixon and Strom Thurmond cooked up the so-called “Southern Strategy” to neutralize the Right-wing third-party campaign of racist Alabama Governor George Wallace.
What was originally a short-term expedient has become a bulwark of Republicans’ hold on power as what political scientist Walter DeVries called the “sun party” of American politics. DeVries argued that throughout American history one of the two major parties was the “sun party” whose supporters dominated the electorate and whose ideology was the main force in political policymaking, while the other was the “moon party” which occasionally won elections but mostly played a subservient role. From 1800 to 1860 the Democrats were the “sun party.” Then after the Lincoln presidency, the Civil War, the end of slavery and the change in America’s ruling class from a landed aristocracy to a tightly integrated network of corporations, the Republicans became the “sun party” and remained so until the Great Depression of the 1930’s brought the Democrats to power.
The Democrats remained the “sun party” until 1968, when Republicans seized on racial resentments from white Democratic voters, especially working-class ethnics, to pull apart the New Deal coalition on which the Democratic “sun party” period had been based. If the Democrats, historically the party of slavery, segregation and the Ku Klux Klan, were reinventing themselves as the party of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and in general the inclusion of people of color, women and (eventually) Queers as equals in American life, the Republicans essentially said, “Fine. Then we’ll take over as the party of racial, gender, sexual and cultural resentment, and that will make us the majority party.”
Donald Trump, the Republicans in the Senate and GOP candidates generally have ridden these resentments to victory in election after election. Not every election, of course, but enough that the ideas of the Republican Party — slashing taxes on wealthy individuals and corporations; ending government protections of workers, consumers and the environment; wiping out organized labor as a social and political force; putting brakes on the civil rights of people of color; supporting law enforcement and actively repressing minority communities; and reversing the relatively liberal immigration policies put in place in the 1960’s in order to Make America White Again — have continued to dominate American political discourse. Trump is waving Brett Kavanaugh’s confirmation in the nation’s — and especially his political base’s — faces not only as someone who will use his power as a Supreme Court justice to enforce his party’s anti-people of color, anti-woman, anti-Queer, anti-worker, anti-consumer and anti-environment ideology, but as someone who personally symbolizes the fight to discredit the “#MeToo” movement and return men to their “natural right” to dominate women and exploit them sexually.
And Trump’s transformation of Brett Kavanaugh into a symbol of male power and privilege got a major boost from an unexpected source: Senator Susan Collins (Republican-Maine). Through a nauseating, schoolmarmish 45-minute performance on the Senate floor, Collins proclaimed herself a supporter of the “presumption of innocence” — as if Kavanaugh were being prosecuted for attempted rape instead of given what amounted to a job interview for the Supreme Court. (If someone were tried for embezzlement, even if they were acquitted, that would be a legitimate reason for the personnel director of a bank not to hire them.) She said there was “no corroboration” of Blasey Ford’s allegations — based on a five-day sham “investigation” conducted by FBI agents constrained by orders from the White House to limit both the number of people they could interview and the scope of questions they could ask.
Collins said she couldn’t even say it was “more likely than not” that Kavanaugh assaulted Blasey Ford as she claimed — and in a 60 Minutes interview she twisted the knife in further by endorsing the preposterous Republican propaganda machine theory that Blasey Ford was indeed assaulted, but by someone other than Kavanaugh. Whatever her motivation for this eruption of gaseous rhetoric, the message Collins sent was a direct assault on every woman who makes a claim of sexual harassment or assault against a powerful man. In blunt terms, Susan Collins told the people of America — both the men who want to keep the sexist status quo the way it is and the women who have experienced sexual harassment and assault and kept quiet about it because of the intense pressure on them to do so — “I’m a woman, and I don’t ‘believe the women’ either!”

Kavanaugh On the Court

The extent to which Brett Kavanaugh’s Supreme Court confirmation became a battle in the culture war over America’s attitude towards women and the ability of powerful men to keep treating women as sexual conveniences took the attention away from where it should have been: just what will Brett Kavanaugh do on the Supreme Court? He offered some chilling hints during his appearance before the Senate Judiciary Committee on the same day as Blasey Ford’s testimony, when he said, “What goes around comes around” and told the committee’s Democrats, “You have sown the wind … ”
Certainly Donald Trump was hardly likely to appoint a progressive, a liberal or even a thoughtful, independent conservative like the justice Kavanaugh will replace, Anthony Kennedy, to the Supreme Court. In my lifetime some of the most progressive Supreme Court justices have been the appointees of Republican Presidents — Earl Warren and William Brennan by Dwight Eisenhower, Harry Blackmun by Richard Nixon, John Paul Stevens by Gerald Ford, David Souter by George H. W. Bush — but that ended when an increasingly ideological Republican Party outsourced its judicial appointments, not only for the Supreme Court but the entire federal judiciary, to the Heritage Foundation and the Federalist Society.
In his Associated Press interview, Trump boasted that he has got more federal judges nominated and confirmed than any President since George Washington — and he may be right. The person he has the most to thank for that is the Senate President pro tempore and Senate Republican Party leader, Mitch McConnell (R-Kentucky). During Barack Obama’s presidency McConnell cooked up a scheme to keep as many federal judgeships vacant as possible so the next Republican President, whoever that may be, could fill them with cookie-cutter clones of the Federalist Society’s judicial ideal: judges who would give businesses unfettered power over workers, consumers and the environment; who would put strict limitations on the ability of women, people of color, Queers and other traditionally disadvantaged groups to achieve justice through the court system; who would grant Republican Presidents broad power to govern by executive orders without congressional action (while denying the same power to Democratic Presidents!); and who would enforce the odd but surprisingly durable ideology of the current Republican Party, which is to get government out of the boardrooms and into the bedrooms.
Thanks to the efforts of Trump, McConnell and a Republican Senate delegation that has ruthlessly used its power to ram through Trump’s nominees by sheer force of their majority, the American judicial system is reverting to what it was between the 1880’s and the 1930’s: a bulwark for corporations and the rich, an upholder and enforcer of growing economic inequality, and a weapon against civil rights. The likelihood that even if someday the Democratic Party regains the Presidency and both houses of Congress, the Supreme Court will put huge constraints on their actions — just as Franklin Roosevelt was bedeviled in his first term by a Supreme Court which threw out just about everything he got through Congress to try to help end the Depression. Indeed, Roosevelt got so frustrated with the Court he launched a failed attempt to expand it from nine to 15 members, and though Congress voted it down Roosevelt eventually got the court he wanted simply by attrition: he served over 12 years (longer than any other President has, or ever will unless the 22nd Amendment is repealed) and the Nine Old Men who had torpedoed his economic agenda either retired or died.
One of the big issues liberal America in general and the Democratic Party in particular has been concerned about with Kavanaugh on the court is the fate of abortion rights and women’s control over reproduction in general. Reportedly Susan Collins extracted from Kavanaugh a promise that he would not vote to overturn Roe v. Wade, the landmark 1973 Court decision (written by Nixon appointee Harry Blackmun!) upholding women’s right to reproductive choice. The dark secret — though it’s really not that secret at all — is that Kavanaugh doesn’t need to vote to overturn Roe. The Court’s current majority has already started the process of gutting it. It began when Justice Sandra Day O’Connor wrote an opinion that said states could regulate women’s access to abortion as long as they didn’t put “undue restrictions” on the procedure.
This ruling begat a joke around the legal community: “What’s an ‘undue restriction’ on abortion?” “Whatever Sandra Day O’Connor says it is.” After O’Connor retired, that became, “Whatever Anthony Kennedy says it is.” Now it will be, “Whatever Brett Kavanaugh says it is” — and Brett Kavanaugh, a hard-core Roman Catholic as well as an ideological Right-winger, is likely to uphold just about any state restriction on abortion as not “undue.” In his last year on the court Kennedy cast the deciding vote in a 5-4 decision striking down a series of elaborate restrictions the Texas state government had passed to make it virtually impossible for a woman in Texas to get a safe, legal abortion. If the Texas legislature tries it again, it’s likely Kavanaugh will cast the deciding vote to uphold their restrictions — continuing the “death of a thousand cuts” the abortion rights supposedly guaranteed by Roe have been suggested to by decades of Republican Court majorities.
The situation for Queer people is likely even more dire. While the Supreme Court is highly unlikely to so dramatically reverse Roe as to make abortion illegal nationwide — liberal “blue” states will still be able to guarantee their women safe, legal access to the procedure — Kavanaugh is likely to expand the Court’s recent trend towards granting government officials, business owners and individual private-sector workers the power to refuse service to Queers on the basis of “deeply held religious objections” to homosexuality and Queer civil rights. One can expect Kavanaugh to build on the precedent of the Masterpiece Cakeshop decision, which upheld the right of a baker to refuse to bake a wedding cake for a Gay male couple, and effectively nullify all legal protections for Queer people by saying that the right of a baker, a government clerk, a pharmacist or anyone else to refuse to serve Queers on the basis of religious “free exercise” under the First Amendment trumps any state legal protections against anti-Queer discrimination. States won’t be able to protect their own Queer populations from this sort of “constitutionally protected” religiously-based discrimination!
Perhaps an even more dire consequence of Kavanaugh on the Supreme Court will be the destruction of the regulatory state. Since Congress passed the Railway Act of 1908 (signed into law by progressive Republican Theodore Roosevelt), administrative agencies of the federal government have had the power to issue so-called “rules” that, though they aren’t voted into law by Congress, have the power of law. Most of the advances in protecting workers’ health and safety, protecting consumers from unsafe products or deceptive sales and advertising practices, and protecting the environment from exploitation and destruction, have occurred because federal agencies had this rule-making power.
But Brett Kavanaugh, in his previous gig as a justice on the federal Ninth Circuit Court of Appeals, is on record as saying the entire “rule-making” process is unconstitutional and agencies shouldn’t be able to enact rules until Congress approves them. Congress already has the power to veto a rule within 120 days after an agency enacted — which Trump and the Republican leaders in both houses of Congress used to wipe out rules enacted in the waning days of the Obama administration — but Kavanaugh is likely to provide the deciding vote on the Supreme Court to render the entire “rule-making” process unconstitutional and leave the rights of workers, consumers and the environment to the untender mercies of a corporate-controlled, Republican-dominated Congress.
One other issue on which Kavanaugh has staked out a far-Right position — and one which has been widely rumored to be the reason Trump appointed him rather than one of the others on his short list — is Presidential accountability. Though Kavanaugh served on special counsel Kenneth Starr’s investigation of President Bill Clinton — which began as a probe of a failed Arkansas real-estate development and ended with Clinton’s impeachment for lying about a sexual affair — he has since changed his mind and decided that Presidents should be immune from all legal proceedings while they are in office. This means that Donald Trump has at least one sure vote on the Court to keep him from being indicted by Robert Mueller if Mueller finds he was part of a conspiracy with Trump campaign officials and Russian government operatives to influence the 2016 Presidential election in Trump’s favor.
The issue of whether Presidents have to respond to subpoenas for evidence from special prosecutors investigating them was supposedly settled in the 1974 case U.S. v. Nixon, in which the Supreme Court (by an 8-0 vote, including three of Richard Nixon’s own appointees) ruled that he had to turn over the recordings of Presidential meetings sought by special prosecutor Leon Jaworski. The recordings revealed that Nixon had directly intervened to cover up his campaign’s involvement in the 1972 break-in at Democratic Party headquarters in the Watergate office-hotel complex by telling the CIA to order the FBI to back off its investigation on false grounds of “national security.” Overnight Nixon’s remaining support in Congress evaporated and he resigned a week later.
But Brett Kavanaugh is on record as saying that U.S. v. Nixon was “wrongly decided” and he would have ruled that Nixon had a right to keep his recordings secret at least until the end of his Presidential term, and possibly forever. It’s likely that if Mueller attempts to subpoena Trump to testify before his investigation, Kavanaugh will draw some sort of specious distinction between what Nixon was ordered to do (turn over physical evidence) and what Trump would be ordered to do (testify personally to a grand jury under oath). He’d be working around not only the U.S. v. Nixon case but also the ruling Starr got against Clinton that he had to give testimony in the lawsuit filed by Paula Jones against him, which ultimately led to his impeachment and narrow escape from being removed from office in disgrace when Republicans couldn’t muster the two-thirds Senate majority needed for conviction on an impeachment.
But Kavanaugh’s fertile mind will no doubt come up with some specious reasoning that even though previous Supreme Court decisions have required Presidents to submit physical evidence in a criminal trial, and provide personal testimony in a civil lawsuit against them, requiring a President to provide personal testimony in a criminal prosecution against his current or former staff — and possibly against the President himself — would be unconstitutional because it would divert the President’s attention when he needs to be fully focused on the task of running the country.
As long as Republicans remain in control of both houses of Congress as well as the Presidency and the Supreme Court — and Kavanaugh’s appointment has ensured them likely dominance of the Court for the next 25 to 50 years — Trump will have nothing to fear from Robert Mueller or any other investigator with actual subpoena power. Indeed, I’m convinced that Trump is only waiting for the midterm elections to fire attorney general Jeff Sessions and deputy attorney general Rod Rosenstein, and replace them with officials who will in turn fire Mueller and end the special counsel’s investigation of his campaign’s alleged ties to Russia once and for all.

Brett Kavanaugh’s ascension to the United States Supreme Court is a disaster for the country — for workers, consumers, the environment, people of color, women, Queers and everyone else in the cross-hairs of Republican orthodoxy. If there’s a silver lining in it, one would hope that it would be the final straw that convinces the idiots in what I’ve taken to calling the “alt-Left” — those who still insist, against all evidence and reason, that there is “no difference” between the Republican and Democratic parties. Kavanaugh is yet one more piece of living proof that, even they are both committed to maintaining the capitalist system and are influenced by the priorities of the corporate elite (I think Bernie Sanders got the distinction right when he said the Republicans are “controlled” by the 1 percent and the Democrats are “influenced” by it), there are still profound differences between the Republican and Democratic parties and the only way to restore America’s democracy (however limited) and protect it against the authoritarian agenda of Trump and the modern-day Republicans is to vote for Democrats for every elective office.