Consequences Of The GOP’s “Meatballs” Kavanaugh Confirmation
Though not on the magnitude of Harold Ramis’ iconic comedy, “Caddyshack” – close to that on the list of America’s favorite movies starring Bill Murray – in his first marquee appearance, is Ivan Reitman’s classic frolic, “Meatballs”
Meatballs featured Murray as a senior camp counselor, Tripper Harrison, at Camp Northstar. In one of the most memorable and oft cited episodes in the movie, Harrison improvises a chant intended to stir the competitive spirit of his demoralized camp basketball team against their dominant tournament opponents, Camp Mohawk. Murray’s character employs a clever but seemingly unlikely psychological device consisting of the mantra, “It just doesn’t matter”, to energize the fearful and dispirited Northstar team.
The idea behind it is that the outcome of the game should be banished to the outer regions of the children’s consciousness and the positive ethic of just going onto the court and putting forth the gallant do or die effort and letting the chips fall where they may, pushed to the forefront.
Here’s the scene:
The President, the Republican members of the Senate Judiciary Committee and the entire cast of GOP rank and file Senators, with the one notable exception, Alaskan Senator Lisa Murkowski, have taken the mantra of Camp Northstar, turned it on its head and co-opted it for shameful intent in the partisan ram-rodding of Brett Kavanaugh through confirmation to a seat on the United States Supreme Court.
To the concern that Kavanaugh was plucked by Donald Trump from the list of potential appointees for the purpose of insulating Trump from the various risks posed to his presidency in a likely impeachment in the House of Representatives – the answer was a resounding,
“It just doesn’t matter”.
Kavanaugh has a demonstrable propensity for making broad statements void of any factual merit, such as his first public comments after nomination by Trump, in the initial announcement ceremony indicate, “Mr. President, thank you. Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination”
No red flags on that, even though it was immediately pointed out that Trump attacked a Federal judge in charge of the Trump University fraud case – Justice Gonzalo Curiel – accusing Curiel of bias and calling Curiel, in an interview with CNN’s Jake Tapper, a “Mexican” – in spite of the obvious fact that Judge Curiel is an American citizen, born in America and has never held Mexican citizenship. The GOP’s collective reaction to Kavanaugh’s obvious misrepresentation of Trump’s views of the judiciary?
“Meh – it just doesn’t matter”.
In response to legitimate requests for the production of several hundreds of thousands of pages of documents and records pertaining to Kavanaugh’s role in the Bush (43) administration as an attorney inside the Office of Independent Counsel, plus those pertinent to his role as White House Secretary (560,000 pages, 475,000 emails), and sufficient time to review them, the response from Judiciary Committee member Charles Grassley, (R-Iowa) was that the requests were unreasonable because they were, “delaying the confirmation of Kavanaugh.”
“It just doesn’t matter”.
Kavanaugh made representations in sworn testimony during his previous confirmation hearings for appointment as an Associate Justice to the U.S. Court of Appeals (District of Columbia) that may have constituted perjury, in part, when he denied in a Senate hearing that he participated in formulating policy dealing with the legal status of detainees designated by the administration as “enemy combatants”. The comeback from Republicans – “It just doesn’t matter!”
Kavanaugh stated to Senator Patrick Leahy, in the 2006 hearings that:
“I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out. This was not part of my docket, either in the counsel’s office or as staff secretary.”
That was demonstrably false from the record and Kavanaugh intentionally mislead the Senate. After all, Kavanaugh participated in the very meetings where the political and legal viability of Bush’s proposed policy on the treatment and legal rights of detainees was discussed by other top administration officials. As the New Yorker pointed out:
“First, attending this meeting or even just contributing a reading of Justice Kennedy’s likely view would seem to constitute taking part in a discussion on detention policies, and thus to contradict Kavanaugh’s sworn testimony.”
Kavanaugh’s lies in the view of the Republicans sheparding his nomination forward?
“It just doesn’t matter”.
Kavanaugh was also found to have lied about his awareness of former Ninth Circuit Court of Appeals Chief Justice Alex Kozinski’s hostile workplace environment, reputation for sexual harassment and unbecoming conduct. As a clerk to Kozinski, there is ample evidence that in legal terms, Kavanaugh “knew or should have known” that Kozinski was off the rails in his behavior.
In fact, people who were in a position to inform the FBI and the Senate Judiciary Committee about what Kavanaugh knew regarding Kozinski’s conduct and offered to do so, were ignored by the committee. Because it just didn’t matter to Republicans, then or now.
McConnell and Grassley’s retort to lingering questions about Kavanaugh’s past reputation as a political partisan on the D.C. Court, was of course,
“It just doesn’t matter”.
The GOP Senate’s rejoinder to those such as Judge Andrew Napolitano’s objections about Kavanaugh’s record of not upholding the Constitution’s bedrock safeguard of liberty and privacy, the Fourth Amendment in prior opinions he rendered on the D.C. Court – was inevitably,
“It just doesn’t matter”.
The same answer was given when the issue of the mass collection and archival of American’s personal phone information (the National Security Agency’s Section 215 call-records program), ordered by Bush, was raised by Constitutional scholars and stalwart defenders of civil liberties. They objected that Kavanaugh stated in his ruling that, “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”
House Member Justin Amash (R-MI), tweeted his rejection of Kavanaugh’s position, sounding the alert that, “Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.”
Judge Kavanaugh, in a dissenting opinion, later adopted in review by the Supreme Court, held that federal law enforcement was within its bounds placing a GPS tracking device on a subject’s vehicle without prior judicial authorization, (United States v. Jones).
In Klayman v. Obama, Kavanaugh reasoned away the traditional view of restraint against searches and seizures lacking probable cause, by the invention of the device of “special needs” of the government. From his opinions:
“Even if the bulk collection of telephony metadata constitutes a search… the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. …The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need”—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty.”
Kavanaugh is noted to be an enthusiastic patron of the late Supreme Court Chief Justice William Rehnquist’s views on the 4th Amendment – which, in summary, favor the government’s interests in extra-judicial intrusion over the rights of citizens to not be intruded upon without well established probable cause. In Omar v. McHugh, Kavanaugh held that American citizens detained overseas, are not entitled to due process, even when facing the prospect of torture. None of this gave the Senate Republicans or the White House any pause or hesitation.
“It just doesn’t matter!”
Outgoing Arizona Republican Senator Jeff Flake petitioned his Senate colleagues for a late in the process supplemental FBI background investigation – ostensibly to attempt to learn more about the circumstances behind Dr. Christine Blasey Ford’s representation that Kavanaugh and his prep school pal, Mark Judge accosted her and attempted a rape at a party in Summer 1982.
However, based on the manner in which Donald Trump, Senators Grassley and McConnell hedged in FBI investigators, it appears that there never was any intention of learning anything, but rather, to provide political cover to the few GOP holdouts, Murkowski, Collins and Flake.
With dozens of people requesting to speak to the FBI – the agency, at the direction of the Republican party, closed shop on the 7 day investigation in just 4 days and declined to interview individuals who would have shed light on Kavanaugh’s testimony before the Senate. Justice interrupted. But, in the estimation of the Republicans and Trump? That’s right –
“It just doesn’t matter!”
Kavanaugh lied in his sworn testimony before the Senate, about a host of issues – not the least, his notations in his high school yearbook and a calendar he maintained. Lies that were easily disproved regarding the definition of terms that signified drug use, extreme drinking and, to say the least, unconventional sexual behavior. According to the GOP? –
“It just doesn’t matter”.
Judge Kavanaugh, in his scripted statement to the Senate on September 27, indulged himself in an angry tirade about the hearings, expressing rhetoric alleging partisan conspiracies and issuing a threat to, if confirmed, apply ideological metrics and exact retribution against Democrats, saying, among other things, “What goes around, comes around”. Republicans shot back,
“It just doesn’t matter”.
Witnessing this display of out of control emotional outbursts, disrespect to Senators and naked partisanism, respected members of the academic and legal communities, submitted their objections to Kavanaugh’s confirmation.
The American Bar Association recommended the Senate and president, withdraw Kavanaugh’s nomination. 2,400 professors of law nationwide, signed letters opposing the confirmation – many of whom frequently have business before the court. Among the concerns raised in the letter, the professors noted that in Kavanaugh’s response to the subjects raised in the hearing, “Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.”
They summed up their view of Kavanaugh’s performance, concluding that,
“Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land. “
Former Dean of Harvard Law School, Robert Post, wrote in Politico that Kavanaugh’s behavior would be, “indelibly etched in the public mind. No one who felt the force of that anger could possibly believe that Kavanaugh might actually be a detached and impartial judge”.
Did this have any impact in causing the Republicans pushing Kavanaugh’s confirmation through, to pause and reflect? Nope, because again,
“It just doesn’t matter”.
The GOP had one last opportunity to think deeply about where all this was going and how unbecoming it would appear to independent voters. Retired Supreme Court Justice John Paul Stevens, stepped forward and rescinded his earlier support of Kavanaugh, noting that Kavanaugh:
“demonstrated a potential bias involving enough potential litigants before the (high) court that he would not be able to perform his full responsibilities.”
The resulting damage to the standing and reputation of the Supreme Court in the eyes of Americans? It matters; it strongly matters. To Trump, McConnell and the GOP? That’s right – say it with me,
“It just doesn’t matter!”
Senate Majority Leader Mitch McConnell, together with Donald Trump profess to believe that the manner in which the Kavanaugh confirmation process was managed by them, will redound to their benefit in the mid-term elections a month from now. McConnell told USA Today, “The ironies of ironies, this has actually produced an incredible surge of interest among these Republican voters going into the fall election. We’ve all been perplexed about how to get our people as interested as we know the other side is, well this has done it.”
A pragmatic interpretation of the effect on voters however, suggests that McConnell’s claims are more wishful thinking and whistling through the graveyard than they are reality based.
Women are furious about the outcome of the Kavanaugh confirmation. Polling shows that while Republican support for Kavanaugh increased 15 percent from September to the present, opposition from Democrats increased by 28 percent. Women angry at Senator Susan Collins’ vote on Saturday, contributed to a fund to unseat her in 2020.
During Collins’ speech explaining her rationale for voting to confirm Kavanaugh, women donated $2 million in an online crowdfunding campaign to bankroll her opposition in just 40 minutes and the fund now reports it is pushing well past the $3 million mark. Such a response to a single confirmation vote is unprecedented.
Kavanaugh is the least popular Supreme Court nominee in modern history. Kavanaugh’s support had been trending down since July and the most recent sampling of the opinion of GOP women – the Morning Consult / Politico poll, found support for Kavanaugh down by 18 points and in a sequence of YouGov polls, down 10 percent. The YouGov polls might even be underplaying the disdain Kavanaugh engendered with GOP women, because internet based polls are subject to distortions.
The numbers run contrary to all of the noise from the GOP and the president about “angry Republican women”. Most are angry, but they are angry more so about the handling of Kavanaugh’s confirmation and the sham investigation.
The real evidence that the GOP has shot itself in the foot with this issue, is that the polls showing a Democratic lead in the generic ballot have not been dented in the least by the arousal of the Republican base that Trump has been touting.
Women favor a Democrat in congressional races by 12 percent. What should be particularly troubling for Republicans is the Washington Post / Sclar School poll showing that in 69 of the most contested congressional districts – “battleground districts” – women likely to vote, favor Democrats by 14 points, while males favor the GOP candidate by 5 points – a 9 point gap.
Bottom line is that the GOP Senate decided that Trump’s base and Kavanaugh were worth dying on a hill. As a consequence, the Republicans have sown the seeds of their eventual destruction as a nationally competitive party. The bitter refrain that will echo as a lingering lament for them in the coming months and years – even if they come to their senses and realize they have been the architects of their destruction, will be …
“It just doesn’t matter”.
