Committee Classified

Brett Kavanaugh is an extreme right wing rich man’s dream Supreme Court justice. He rules for corporations, almost every time.  He does not necessarily think a woman’s right to an abortion should be constitutionally protected across the country (although what business that is of extreme right wing rich men is a mystery to me).   He consistently rules against consumers, employees, the disabled, voting rights, the environment, the air we breathe, the water we drink.  He rules for gun manufacturers and the Scalia-created expansive view of the Second Amendment.   He has no problem with the right to own an arsenal of assault weapons being constitutionally protected.  He has no comment about his involvement in the Bush Administration’s torture program, though he admitted he probably worked with John Yoo, author of the torture memo, in the days after 9/11 when it was “all hands on deck”.  He could not promise to recuse himself from any case involving the investigation into Trump, even after probably, and improperly, speaking with Trump’s lawyers about the Mueller investigation.

Kavanaugh has a perfect score on every issue dear to bottom-line conservatives.  Some of his writings and opinions are so far to the right, and presumably so repugnant to most average Americans, that they have been classified and are being kept from public view, in the interest of getting him confirmed as quickly as possible without an undue uproar about his actual beliefs.   You can be sure of these beliefs, since he was recommended highly by the ultra-conservative Federalist Society and the Heritage Foundation, endorsed by every other organization of their type. He brazens it out, as his predecessors have learned to do.  One important qualification for our nation’s top court would appear to be brazenness.   This quality enables him to blandly pretend that the issue of a president claiming the power to pardon himself and to refuse to comply with judicial subpoenas is purely hypothetical.

Kavanaugh has long been a partisan conservative.  He was one of Kenneth Starr’s most aggressive assistants during the historically partisan investigation that led to the impeachment of an American president for lying under oath about a series of blow jobs he received from a White House intern.   Since then American presidents have prudently stopped speaking under oath.   Kavanaugh, whose deference to the wishes of conservative presidents is well-documented, worked in the George W. Bush White House when Bush refused to testify under oath, quite possibly advising him on that matter.  George W. Bush would not speak under oath to the 9/11 Commission, a commission whose work he fought for a long time.   Bush and Cheney eventually negotiated a deal, they’d jointly attend a secret session where they’d speak to the Commission on terms of complete secrecy.    No notes or recordings were allowed, no oaths were administered, no promises to be truthful were made, the Commission agreed to say nothing about the meeting.  Nothing to see here! Including, fourteen years later, whatever Brett Kavanaugh might have had to say about it, he was a lawyer at the White House [1] in the years before Bush appointed him to the federal bench.

This seemingly guilty behavior, lawyering up on terms that offer absolute protection from any possible liability, has been normalized, but it was, until recently, a ballsy move for a politician to invoke complete secrecy, and preservation of the right to prevaricate or outright lie, without legal consequences, in a matter of extreme public interest.   It makes them look guilty, for one thing.   Blanket classification of politically embarrassing matters appears to be profoundly anti-democratic, since the public, theoretically, has a right to be fully informed on such matters.  

Brett Kavanaugh appears fine with this enhanced secrecy as he brazens out his confirmation questioning by Democrats who don’t have the votes to stop his confirmation.   He went to the top of the nominee list when the justice he clerked for, Anthony Kennedy, was persuaded to retire so that Trump could immediately get another Supreme Court pick.  It is hard to imagine that his replacement, by a clerk he trained, was not part of Trump’s discussion with Kennedy about preserving his legacy on the Court.  

Kavanaugh has written, since his days aggressively pursuing the investigation into the perjurer Bill Clinton, that the president should be immune from prosecution, even investigation, during the performance of the duties of our nation’s highest office.   Very handy, for a president under investigation, whose personal lawyer and former campaign manager are already heading to prison, to have another friendly ally on the bench of the Supreme Court as he seeks to continue working “outside the box” to Make America Great Again.

Unfortunately for the rest of us Americans, and for our jurisprudence going forward for at least a generation, there is little any of us can do to influence the outcome of this confirmation sham, or even to get thousands of pages of compromising writings by Kavanaugh released prior to his confirmation and appointment .   Kavanaugh’s rushed confirmation and appointment to a seat on the nation’s final arbiter of what is legal and what is illegal, will give the sitting president a long-term partisan majority to rule on every matter pertaining to his administration.   The rush is no accident, the Republicans are in a hurry.  If Kavanaugh is confirmed next week (it would likely be a new record for a speedy appointment [2])  he will be seated in time to make rulings during the crucial midterm elections.   If there is an emergency ruling on some voter-related issue during the elections, Kavanaugh and Gorsuch will decide it.   If there is a subpoena served on our historically prolific liar in chief, to testify in the “perjury trap” he’d be surely caught in, according to his supporters, Gorsuch and Kavanaugh will decide whether he must obey it.

Until the Republicans changed the rules after Gorsuch’s nomination fight to ensure that a 51-49 majority was inviolable, a filibuster would have been possible to delay this fait accompli.   Prior to 2017 the opposition party could engage in a filibuster that took 60 votes to overcome.   Now a 51-49 majority is inviolable, absolute.    Nothing to see here!   This is American partisan democracy at work.  Suck on it, losers.

Oh, yes, Committee Confidential.   I think this too may be a new innovation by the famously shameless partisans on the Republican side of the aisle.  Under pressure more Kavanaugh writings were released to the Senate Judicial Committee members, after vociferous public demands for more of the classified documents by Democratic members of the committee.   They were released on the condition that the American public, the voters, never learn of their contents.  There was an email about Racial Profiling that Kavanaugh wrote, apparently reflecting his reflexive right wing thinking on the matter.  Cory Booker asserted that he’d be making the email public, and take the consequences.  A Senator named John Cornyn, an apparent dickhead from Texas, seemingly sitting in for the chairman, reminded the angry Democrats on the committee that such opinions were Committee Confidential and would be disclosed to the public at the rule-violating committee member’s peril.  Cornyn read the rule severely, threatening Senator Cory Booker with expulsion from the Senate.  It appears to have been a wholly blustering threat.  [3]

What business is it of the American voting public if the lifetime appointee believes, for example, that Racial Profiling is a perfectly acceptable way for law enforcement to protect us from the ravages of our long, ongoing race war?    Or if he believes that a woman who gets pregnant, or a girl who is raped, must give birth, no matter what, if the laws of her state forbid abortion?    What kind of country we are living in will be decided by Neil Gorsuch and Brett Kavanaugh, even if Trump, who won the democratically dubious Electoral College by a historically small number of votes (about 80,000), is impeached, tried, convicted, sent to prison, he will leave his illegitimate mark on our nation for at least the rest of my lifetime, if not everyone on the planet’s.   He will leave his indelible stain as he goes down fighting, to the death. 

 

[1]   After the 2000 U.S. presidential election (in which Kavanaugh worked for the George W. Bush campaign in the Florida recount), Kavanaugh joined the administration and was a central figure in its efforts to identify and confirm judicial nominees.[3]

[2]  The Republicans have a very short window to get Kavanaugh his seat on the Supreme Court in time to join them before the midterms.  The new term starts the first Monday of this coming October, October 1.

Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixonadministrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).[13][14] Some believe this is because Congress sees Justices as playing a more political role than in the past.[15] The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork’s nomination “unjust” and, more generally, that the nomination process does “not delve deeply into the nominee’s jurisprudential thinking.”[16] Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right.[17] One indication of the politicized selection process is how much time each nominee spends being questioned under the glare of media coverage; before 1925, nominees were never questioned;[18] after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the hours spent being grilled have lengthened from single digits (before 1980) to double digits today.[19]

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[3] Cory Booker’s bold challenge to be censured or expelled from the Senate for violating the Committee Confidential rule made good television.  Unfortunately for fans of Senator Booker, he’d allegedly already received clearance, the night before, to disclose the contents of the email before his television moment of great principled bravery .    This is according to the Kavanaugh ally in charge of the release of any or all the controversial documents.  Booker’s office had no comment (Booker give his side here). Snakes everywhere, Mr. President!

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