The Senate Judiciary Committee on Friday voted along party lines, 11 to 10, to recommend the confirmation of Brett Kavanaugh as the next associate justice of the Supreme Court. But there could be a hitch.
Even as he voted to move the nomination forward, Sen. Jeff Flake (R-Ariz.) asked for a week’s delay in the full Senate vote to allow the FBI to investigate the sexual assault allegations against Kavanaugh. That may or may not happen. Whatever happens next, for the middle-aged and elderly white men who make up the Republican committee caucus, Friday’s frantic machinations were another act in the extraordinary passion play that opened Thursday on Capitol Hill.
The drama, followed by tens of millions of their fellow Americans, wasn’t about law, or justice, or evidence. There was no search for the truth or a tilling of facts. We saw an exercise in power. The power of majority rule. The power of white men. The power of manipulated procedure. And anger. Not the anger of an attempted rape victim, who before the committee was more graceful and dignified than most of us would be in those circumstances, but rather the anger of a man who could not bring himself to believe that his charmed life of privilege and opportunity was going to take a detour because of the kind of teenager he was.
On Thursday, to assuage President Trump’s anxieties, Brett Kavanaugh abandoned any pretense that he would be a neutral arbiter, an independent mind, a judicious presence, if he reaches the high court. We saw what you could say is the true Kavanaugh. Snarling. Petulant. Arrogant. Not the kinder, gentler nominee who had preened weeks earlier before this same committee — the soccer dad cuddling with the Constitution and preaching judicial integrity and an open mind — but the vicious partisan infighter with no judicial temperament or integrity who had, two decades ago, helped fuel special prosecutor Kenneth Starr’s crusade against President Clinton and Monica Lewinsky.
Whatever its political merits, however it played at the White House, no one who saw Kavanaugh’s performance Thursday ought to have any confidence that he now can pivot to become a justice worthy of broad respect and trust from the American people. Everyone who saw his performance instead ought to realize, if they haven’t already, that Kavanaugh was selected by President Trump because he was endorsed by the Federalist Society because he is a dead-certain cinch to drag the most conservative Supreme Court in 80 years even further to the right. He’s not a judge. He’s a party functionary dressed in a black robe.
Kavanaugh, in his fury and bluster and bullying, mirrored more than ever before the man who nominated him. Who is Brett Kavanaugh? He’s a liar. On matters large and small, even when he doesn’t have to be. With a temper. Accused of sexual assault. He’s the guy who snapped at Sen. Amy Klobuchar (D-Minn.), who had just told him about her father’s alcoholism, rather than answer a question about whether he ever blacked out from drinking. He apologized, but that was a real glimpse into who and what he is. Couldn’t you see in his ferocity what he might have been like as a teenager, fueled by alcohol?
The Senate Republicans had abandoned any pretense of getting to the bottom of the sexual assault allegations against their nominee. We all know what a genuine investigation would look like. We know that if there are allegations that there were three people in a room in which an assault occurred, it is necessary to question all three people, face to face, under oath. Ever hear of a criminal suspect refusing to allow authorities to interview his alibi witness? Me neither. Questioning Mark Judge is just one thing the FBI could take care of if Flake gets his way.
The Republicans on Thursday also laid bare the misogyny at the heart of their caucus. They hired Rachel Mitchell, a well-respected sex crimes prosecutors from Maricopa County, Arizona, to question the witnesses and were perfectly content to allow her to cross-examine Christine Blasey Ford. They couldn’t afford to be seen hostilely questioning an alleged sex assault victim. Bad optics. Cynical politics.
It was a cheap trick. And when it came time to cross-examine the alleged suspect, Kavanaugh, Mitchell the prosecutor was quickly relegated to silence and the white, elderly, rich, entitled men who hired her took over and vented their frustration at their nominee’s anguish. And what grievances they aired! Not about the scourge of sexual assault in America or the difficulty many have in reporting it. Not at the way the rush to confirm Kavanaugh had backfired amid the emergence of grave allegations against him. But at Kavanaugh’s distress that anyone would presume to see him differently than he sees himself.
The only saving grace of Thursday’s debacle was Ford. She showed courage in coming to Washington to tell her story, knowing that it probably wouldn’t make a difference. Composure. Courtesy. Resolve. With an agenda only to let posterity know that the nominee isn’t the Boy Scout so many claim him to be. I have covered countless trials and I cannot remember a more compelling or credible witness. The Republicans knew this, and so did Kavanaugh, which helps explain the volume of their shouting, and the depths of their fearful rage, when Ford left.
At the end of all the sound and fury, we are where we were before the passion play began. The confirmation of Kavanaugh is still likely. An FBI investigation, contingent on a presidential order, is still unlikely. And dispositive evidence that would change the GOP trajectory, all these years after Kavanaugh and Ford were in high school, also unlikely.
The least popular Supreme Court nominee in modern history is still headed for the high court. Power is as power does, as Sen. Lindsey Graham told us Thursday during one of his three televised meltdowns. It was about the only true thing that came out of his mouth. That is the lesson every American infuriated at what the Republicans are pulling off ought to remember when they cast a ballot this November and every election afterward.
Andrew Cohen has covered the last six Supreme Court nominations. He is senior editor of the Marshall Project and a fellow at the Brennan Center for Justice.
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