Many Americans woke up the Friday after the Ford-Kavanaugh hearings in a replay of the day after the election when it seemed the better angels we hear so much about were beaten back. Aggrieved entitlement seemed to have won out. On the east coast, even the weather played along with the dreariness of the Day After. But for a reprieve from Jeff Flake, who managed not to waste his skin for once, Brett Kavanaugh seemed certain to sit on the Court, get lionized in the press for a weekend complete with breathless tick-tock accounts of his decision and a platform on 60 Minutes.
The seeming moderates, Flake and Susan Collins, then held the country in suspense, made dramatic floor speeches, offered qualifiers and platitudes, and…voted the way they were going to all along.
The closest analog to the days bookending the hearings and the votes—Anita Hill-Clarence Thomas—took place with just a few more months left of the Cold War and the tenuous consensus that came with it crumbled. Since then, we have been immersed in a quarter century of quickly ratcheting up partisan warfare that saw personal tragedy used for political points. The events that flowed from that could give the tumult of the Sixties a run for its money: an impeachment, an election theft abetted by the same Court Brett Kavanaugh is applying to (no foreign intervention necessary), the worst national security lapse in the country’s history, a war waged on false pretenses that led to upwards of a million deaths, the collapse of the global financial system, a reality television star elected president, unleashing racial backlash and unrelenting chaos in the 17 months since.
The new Republican tagline became, as sensitive as they are constitutionally capable in the #MeToo era: “We believe Dr. Ford but Brett Kavanaugh didn’t do it.” The new toothless centrist anthem: “Both testimonies made us cry.”
They deluded themselves, too, the Democrats put them in this place, poisoning politics a la Robert Bork, a reactionary that made Scalia look like Brandeis. Bork, who did Nixon’s bidding in the Saturday Night Massacre. A party that destroyed its middle flailed about, finding its way to a middle ground between the two irreconcilable stories, deluding itself up until Susan Collins’ interminable speech that they had found it—by denying a survivor’s story without saying it. And they did it by telling themselves they were forced by Democrats to accept a man accused of sexual assault to the Supreme Court. It won’t end here—they see two seats, two more aged justices, and can’t wait to get their paws on them.
To the national press, protesters forcing a cabinet secretary or a senator from a restaurant is a deepening symptom of the extremes while snatching children from their parents or healthcare from people, is just an ideological difference, a sign of polarization between the parties.
The spectacle that played out before the Senate Judiciary Committee echoed the OJ chase—this time played out across the gender divide and on phones in the subway. Kavanaugh’s performance—and it was nothing but a performance—brought to the ornate hearing room a rage it wasn’t ready to hear but one that had been cultivated there for years. It wasn’t the rage of the people who lost their homes through fraud while no one went to jail, or the people left behind in Puerto Rico or parents separated from their kids or as case after case after case shows cops walking free after their taxpayer-funded snuff films go viral. No, it was the rage of a guy choked up with reverence about his high school calendars and fuming in his job interview for a lifetime position from a president who promised to drain the Swamp.
And who better represents the Swamp than the son of a lobbyist and a judge, a prep school graduate and Ken Starr alum who spends more money on baseball tickets than the median price of a house and is dodging charges of sexual assault on his way to a lifetime seat?
Over the past few weeks, the US Supreme Court has often been called the “last bastion”— untouched by the wars that have scorched our politics until recently, some centrists lament. For the Court to be called a last bastion this deep into the American experiment is an immense expression of privilege: the Supreme Court has already on its hands monstrous rulings like Korematsu, Plessy, Dred Scott in centuries past. In our century the Court’s majority has allowed money to flood our politics, eroded workers’ rights, and expanded corporate personhood.
Last bastions have a way of not lasting. The House’s collapse of civility might be traced to a single spring day.
On May 8, 1984 we got a preview of what was to come. Junior congressman from Georgia, Newt Gingrich, gave a late-night speech to a near-empty chamber excoriating Democrats for their votes, challenging them to defend them. They didn’t—because they weren’t there. But C-SPAN viewers had no way to know that. By rule, C-SPAN cameras are focused on the member of Congress speaking. Speaker Tip O’Neill, seeking to expose Gingrich’s trick, ordered the cameras to pan the empty gallery.
A week later, Gingrich protested O’Neill’s “unilateral” move, and got a furious response: “You deliberately stood in the well of this House and took on these members when they weren’t here. It’s un-American! It’s the lowest thing I’ve heard in my thirty-two years here!” It was the kind of response that the Republican base lives for today.
The House’s rules were so genteel that O'Neill's words were treated like a near vulgarity and had to be struck from the record. Within five years Republicans would take over the house, Gingrich would be the Speaker and not be dislodged but for a four year interregnum.
A New York Congressman was prescient: “I would not be buying any stock in bipartisanship if I were you.” Not that bipartisanship be the goal. Sure, it brought members of Congress of radically different stripes to join together in a rendition of “God Bless America” while the Pentagon smoldered across the Potomac on 9/11, but it also brought unchecked assumptions on the Iraq war, and before that, financial deregulation, the crime bill, and welfare reform.
A few years after the O’Neill-Gingrich scrimmage, a Kavanaugh dress rehearsal named John Tower, a Texas Senator, was nominated by George H.W. Bush as defense secretary—despite a sex assault allegation and a reputation for heavy drinking. A bit more worrying coming from the man who orders a nuclear strike than from a justice who labors over legal opinions, he was rejected by his fellow Senators.
Replacing Tower after he was rejected got us Dick Cheney and that job, and prosecuting the Gulf War two year later, gave him the kind of hollow gravitas to make Washington obsequious to become VP a dozen years later. No matter. Vengeance would be made: the speaker of the House, Jim Wright, would be taken down a few months later over arcane House rules about book fees.
Two popular vote losers later, and four Supreme Court nominees between them, have scrambled the rules. The most unpopular Supreme Court nominee in history with credible sexual assault allegations and a record of lying under oath under his belt under the klieg lights would apparently be too much to expect Democrats to stop.
Here the rules have to change. Democrats need to stop getting stranded in the center, and move to the gutter and declare residency there.
If Democrats governed by the way that Republicans troll now, when Byron White retired Bill Clinton would have nominated Anita Hill, instead of Ruth Bader Ginsburg, to serve alongside Clarence Thomas. For Democrats, “owning the cons” isn’t an animating principle the way “owning the libs” is for the Right, because Republicans own the con.
Again, Democrats are astonished by Republicans’ perfidy. Again, they’re rendered toothless by the arcane rules and merciless arithmetic of the Senate. But they’ll still appeal to a sense of fair play. But what they fail to realize—or vocalize beyond a hastily called press conference—is that a game is only fair if both sides play by the rules. Otherwise, you just get played.
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