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Abu Dhabi, UAEWednesday 17 October 2018

Kavanaugh's confirmation is just the start of this sorry story

The Senate may have voted in the favour of President Donald Trump's nominee, but the Democrats still have options to explore

Protesters demonstrate on the steps of the US Supreme Court building in Washington against the swearing in of Brett Kavanaugh. Reuters/Jonathan Ernst
Protesters demonstrate on the steps of the US Supreme Court building in Washington against the swearing in of Brett Kavanaugh. Reuters/Jonathan Ernst

This weekend the US Senate confirmed Judge Brett Kavanaugh, 53, to a lifetime appointment to the Supreme Court. But this story won’t end there.

His will be the decisive fifth vote in a new conservative court majority that could be dominant for decades. Conservatives have been trying for more than 30 years to control the court, and now they will.

But liberals won’t simply accept that.

On both procedural and substantive grounds, a Democratic majority in the House of Representatives – poised to emerge following the November midterms – can launch a real inquiry.

Questions regarding Judge Kavanaugh’s conduct, truthfulness and temperament have steadily grown.

The FBI’s “investigation” was a pitiful charade. Neither the judge nor his primary sexual assault accuser, Dr Christine Blasey Ford, were interviewed. Scores of people are on the record saying they have relevant information for the authorities, but were ignored.

The FBI was restricted to questioning a tiny handful of approved persons to seek implausible corroborative eyewitness testimony to two alleged incidents, and nothing more.

There’s obviously a mountain of relevant information, but the White House didn’t let the FBI go near it, since White House counsel Don McGann, Mr Kavanaugh’s primary booster, controlled their activities.

The New York Times reports that he warned President Donald Trump that a broad inquiry “would be potentially disastrous for Judge Kavanaugh’s chances.”

That dovetails with a disturbing pattern.

Ms Ford and the Democrats pressed for a serious FBI investigation, while Mr Kavanaugh and the Republicans resisted it. Senate Republicans fast-tracked the nomination, demonstrating an appreciation that time was not on their side and the less people knew, the better.

Ms Ford’s Senate testimony was straightforward, clear, and manifestly honest. Mr Kavanaugh’s was emotional, elusive, misleading and even downright dishonest. Her testimony bore all the hallmarks of truthfulness, whereas his, for all its passion, betrayed evasion and deception.

There are also troubling indications that he and his supporters knew about or anticipated accusations before they were made and prepared advance defences in a highly suspect manner.

The FBI report, which remains hidden, hasn’t answered any questions, because it wasn’t designed to. It was obviously just intended to give Republicans a fig leaf for confirming the nominee.

Most of the story may still be unknown, but a great deal is probably discoverable, and bad for Judge Kavanaugh.

So there are ample factual grounds for Democrats to reopen the case, as well as powerful political and procedural reasons.

The Kavanaugh nomination followed the scandal of Mr Trump’s first Supreme Court appointment, Neil Gorsuch. Senate Republicans refused to consider then-President Barack Obama’s candidate, Merrick Garland, for almost a year until after the next presidential election.

This unprecedented manipulation of majority power to essentially steal a Supreme Court seat is part of a larger picture.

Mr Trump lost the popular vote by almost three million to Hillary Clinton, while the Republican Senate majority represents a shrinking minority of Americans, heavily concentrated in smaller and rural states.

Republicans disproportionately benefit from a range of deviations in the American system from “one man, one vote” democracy, including heaps of “dark money” from unidentified donors, voter suppression, partisan gerrymandering and similar undemocratic distortions.

Republican control of the White House and Senate, if not the House of Representatives, represents the growth of what amounts to minority rule in the United States: the predominance of a right-wing government in what is increasingly becoming a majority centre-left country.

The House of Representatives is the least susceptible to such distortions, and appears to be about to fall back into Democratic hands. Both the Senate and the White House could easily follow. US politics isn’t just cyclical. It’s pendular, and Democrats will eventually come back to power.

But the conservative movement has secured the Supreme Court majority that has been its primary focus for decades. One can easily imagine that, soon enough, Democrats, perhaps with some liberal Republicans, will lead a progressive government while the emerging right-wing Supreme Court majority, largely shaped by Mr Trump, tries to block its every move.

Since this is what both sides are also imagining, Democrats will explore every option to prevent it. There’s never been a successful impeachment of a Supreme Court justice. But there’s always a first time, especially since the new Supreme Court majority will be widely and plausibly regarded as tainted and illegitimate.

Whether or not they can remove Judge Kavanaugh, a new Democratic-controlled government is also likely to try expanding the Supreme Court by several new members. Expect that, too.

The bottom line is, Republicans don’t have a defensible narrative. They are either saying, in effect, that Ms Ford is a crazy person who has been manipulated into spreading outlandish lies. Or they are saying that even if she’s telling the truth, with all that implies, they don’t care.

Both arguments are utterly indefensible. In this giant swirl of contested claims, that these are the only two positions available to them has been lost. But if tested against the facts and more rational interpretations, they’ll both collapse spectacularly.

So, his confirmation will be just the beginning of the already sordid Kavanaugh saga.

Hussein Ibish is a senior resident scholar at the Arab Gulf States ­Institute in Washington