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The Trumpification of the Supreme Court

Brett Kavanaugh’s confirmation to the Supreme Court, now all but assured will be remembered as the signal moment when Trumpism fully infected the judiciary.

Yes, Republicans have placed scores of lower court judges, and even a Supreme Court justice, on the bench over the past 20 months; yes all were nominated by a president who lost the popular vote, and yes, all were confirmed by a Senate majority that represents a popular minority.

But Kavanaugh is different, and not because he represents the emergence of an anti-Roe majority since the the Court declared a constitutional right to abortion 45 years ago. Almost any GOP-nominated replacement for Justice Anthony Kennedy would have cemented such a majority. Kavanaugh in particular symbolizes much more.

For reasons that no long require explanation his lifetime appointment is a painful blow for the patriarchy against equality movements like Me Too.

Even before he stood accused of sexual assault, Kavanaugh was a totem for the forces of dishonesty and bad faith, angling to deceive his way into power by hiding and lying about his career and his agenda.

Kavanaugh has been systematically misleading the Senate since 2004. Rather than own up to his history as a partisan activist lawyer, he disguised his life’s work with spin and outright lies. He disclaimed his role, as an associate White House counsel, in helping to confirm some of the most controversial circuit court judges on the bench. He feigned ignorance of the lawless torture and warrantless wiretapping policies of the Bush administration, and then counted on Republicans in the Senate and the White House to conceal his complete record. He knowingly trafficked in stolen Senate Democratic records to help coach Bush judicial nominees, and then lied about it, concocting the flimsiest of excuses, and offering the Democrats whose documents were stolen not a single word of remorse.

Despite this background, he laughably insisted to the Senate in 2004 that his “background has not been in partisan politics.”

Those deceptions predated the wildly dishonest political campaign he waged to rescue his nomination from credible accusations of sexual assault.

Kavanugh’s appointment is thus an extension of Trump’s contempt for U.S. governing institutions as anything other than instruments of raw partisan power.

After Dr. Christine Blasey Ford concluded her testimony, when Kavanaugh’s nomination faced its greatest moment of peril, he didn’t simply proclaim his innocence, but launched into an incoherent screed aimed at Democrats and the left, whom he warned “what goes around comes around.” He dismissed Ford’s accusation, and the groundswell of opposition it created, as bitter grapes from the election of Donald Trump, and revenge for the Clintons, whom he pursued with maximum partisan furor as a senior member of Kenneth Starr’s office of independent counsel. 

Close watchers of Kavanaugh’s career have known for about two decades that he is an unwashed partisan, not simply a conservative ideologue. The liberal interest groups and Democratic attorneys general that will have business before the Court will have no reason to trust him to adjudicate cases fairly, every reason to ask him to recuse himself, and no reason to expect him to do so.

Kavanaugh’s confirmation represents the establishment of a Republican court—not just a conservative one—for a generation, and enhances the case that Democrats should abandon niceties and add two seats to the Supreme Court when they next control government—one to rectify the theft of Merrick Garland’s seat, and another to neutralize the partisan interloper, whom Republicans confirmed to the Court amid credible claims that he assaulted women and misled Congress.

The effort to confirm Kavanaugh opened new frontiers of corruption in the executive branch as well—through the concealment of Kavanaugh’s public-service records, and, just as importantly, through the shameless manipulation of the FBI, which the White House tasked with conducting a constrained background investigation of the assault allegations, not to pursue the truth, but to contrive the talking point that none of the allegations could be corroborated.

Despite of all these disqualifying sins of, Kavanaugh will become a Supreme Court justice, and the face of a government that has been commandeered by a minority faction and deployed antagonistically against the interests of the masses. The lesson for those masses is to mobilize as if their lives and livelihoods depend on it—for many of them, it does.