epaselect epa06997422 Circuit judge Brett Kavanaugh is sworn in during his Senate confirmation hearing to be an Associate Justice of the Supreme Court of the...
JIM LO SCALZO

Brett Kavanaugh’s independence was already in doubt, now it’s worse

Updated

The Rachel Maddow Show, 9/27/18, 9:00 PM ET

Hearing exposes Kavanaugh temperament, credibility issues

Rachel Maddow reviews themes and highlights from the sprawling, exhausting Senate Judiciary hearing on allegations by Dr. Christine Blasey Ford of sexual assault by Donald Trump’s Supreme Court pick Brett Kavanaugh.
One of the key reasons Brett Kavanaugh was a controversial judicial nominee in the Bush/Cheney era had less to do with his reputation as an ideologue, and more to do with his reputation as a partisan. The distinction matters. His critics didn’t see Kavanaugh as a conservative crusader, desperate to advance an ideological mission; they saw him as a Republican, through and through, who prioritized his role as a partisan pugilist.

That impression, fueled by multiple examples from throughout his career, was reinforced when his Supreme Court nomination ran into trouble, at which point Kavanaugh quickly turned to an outlet closely associated with Republican politics for an unprecedented interview. As an NBC News report put it, “[H]ow impartial can a Supreme Court nominee be when he goes on Fox News – of all possible platforms – to defend himself?” The piece went on to note that the perception of Kavanaugh “as a partisan warrior” was “reinforced” by his Fox News appearance.

Yesterday, desperate to save his nomination to the nation’s highest court, Kavanaugh dropped the pretense altogether. His statement to the Senate Judiciary Committee, in which he sketched out his view of a Democratic conspiracy, was among the most partisan remarks ever uttered by a high-ranking federal judge. Turning his attention directly to the panel’s Democratic members, the jurist said, among other things:

“This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process, but you have replaced advice and consent with search and destroy. […]

“You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind. The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at Borking. Those efforts didn’t work. When I did at least OK enough at the hearings that it looked like I might actually get confirmed, a new tactic was needed. […]

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.”

As a factual matter, Dr. Christine Blasey Ford tried to bring her allegation to relevant parties before Kavanaugh was even nominated, which belies the idea that her claim was cooked up at the last minute to derail his confirmation.

For that matter, his conspiracy theory seems to overlook recent history. If Democrats were on a seek-and-destroy mission to undermine Donald Trump on behalf of the Clintons, wouldn’t they have used underhanded tactics against Neil Gorsuch last year, when a Supreme Court seat Republicans stole was at issue?

But even putting these details aside, if you’re looking for an example of a high court nominee testifying in such stridently partisan terms, you’ll be looking for a very long time.

Under the circumstances, as much of the country grapples with Kavanaugh’s alleged role in a sexual assault, his partisanship may not seem like the most pressing concern.

But judicial temperament matters. Confidence that judges, especially those on the Supreme Court, are impartial and non-partisan arbiters matters. Preventing partisan warriors from joining the bench matters.

And as Rachel explained on last night’s show, watching Kavanaugh yell about this dispute having something to do with Clinton-inspired revenge “was him letting the mask slip a little bit about the kind of partisan warrior he was for his whole adult career before getting onto the bench…. That element of his resume and his temperament and his partisan nature, that has largely been absent from this debate over his Supreme Court nomination – before now. But now that issue will very much be live.”

Kavanaugh emphasized yesterday that he’d written his statement himself. The subtext may have been his effort to assure senators that the White House had not been involved with his defense. But in some ways, that made matters slightly worse: Kavanaugh’s remarks sounded like those of an enraged partisan operative – complete with a reference to Robert Bork – lashing out at Democrats and the Clintons in a way that likely delighted the Republican who nominated him, but scared anyone who expects more from someone aspiring to reach the nation’s highest bench.

There were lingering concerns about Kavanaugh’s independence before yesterday. Those concerns are vastly more difficult to ignore now.

Supreme Court

Brett Kavanaugh's independence was already in doubt, now it's worse

Updated