The sexual assault allegations against Supreme Court nominee Brett Kavanaugh have unfortunately washed other doubts about his credibility out of the debate over whether he should be confirmed. His testimony Thursday even seemed to settle one of the biggest questions about his fitness for the Supreme Court—or any court—but that aspect of it has gone largely unnoticed.
In a stunningly naked display of partisan invective, Kavanaugh described his current predicament as “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election [and] revenge on behalf of the Clintons.” He may as well have called it a “rigged witch hunt [and] Democrat excuse for losing the 2016 election.”
A sitting judge who has let his political mask slip all the way down like this can’t credibly continue to judge in any capacity, but least of all on the Supreme Court where he’d likely shape decisions about Trump’s own legal woes in the near future.
Yet before the allegations began piling up, that was one of the most immediate worries about Kavanaugh’s nomination. Only a handful of Senate Republicans expressed any doubts about Kavanaugh, but, of those, perhaps the biggest surrounded Kavanaugh’s expansive views about executive power, and whether it would be wise to confirm a Donald Trump nominee who’d mused publicly that presidents should perhaps be exempt from criminal investigations.
Kavanaugh’s critics viewed the issue less as a matter of his interpretation of the law than of his poor judgement or long history of partisanship. As a headstrong member of Ken Starr’s independent counsel investigation, Kavanaugh advanced a maximalist view of a president’s vulnerability to a criminal investigations, only to completely reverse himself after working for President George W. Bush.
Republican Senators like Jeff Flake did not interpret that reversal as a reflection of Kavanaugh’s partisanship, but were nevertheless alarmed that someone who had landed where Kavanaugh had landed might decide cases stemming from President Trump’s extraordinary corruption.
When during Kavanaugh’s initial confirmation hearing Flake asked, “should a president be able to use his authority to pressure executive or independent agencies to carry out directives for purely political purposes?” Kavanaugh responded, “I don’t think we want judges commenting on the latest political controversy because that would lead the people to doubt whether we’re independent or whether we’re politicians in robes, so maintaining that strict independence of the judiciary requires me I think to avoid commenting on any current events.”
So much for that.
Flake will walk into the hearing room on Friday morning and likely cast the deciding vote on whether the Judiciary Committee should recommend Kavanaugh’s confirmation. He told reporters Thursday, “I want to give it some thought tonight. This is a tough decision, it really is.”
It should not be tough.
Setting aside Kavanaugh’s treatment of women, Kavanaugh shredded the claim to judicial independence that he used as an excuse to skate past Flake’s questions, and myriad other questions, to get through his first hearing earlier this month. The fact that Kavanaugh can’t be trusted to adjudicate Trump-related matters—or any principally partisan matters—is now abundantly clear.
