Everything Important About the Current Supreme Court Nomination Fight

Kavanaugh

Who is Brett Kavanaugh?

That's the question at the heart of all of this, really, but we're going to start with the literal stuff.

Brett Kavanaugh is the current nominee for the Supreme Court, for those of you not keeping score at home. He was selected by President Trump to succeed Justice Anthony Kennedy, who retired this year.

As of this writing, Kavanaugh’s nomination has been approved for a vote by the full Senate.
Kavanaugh, age 53, is a current United States Circuit Court Judge. The Yale Law graduate has served in the role since 2006. He and current Supreme Court Justice Neil Gorsuch attended high school together, and both later clerked for SCJ Anthony Kennedy.

Why Kennedy's Retirement is Particularly Important

Kennedy's retirement has been particularly critical to liberals and conservatives  because of his unique position on the Supreme Court. Generally, judges have a clear partisan leaning and, thanks to their lifetime appointments, can wait to retire until they can be reasonably certain someone with similar judicial leanings can be appointed.

Justice Kennedy was the Court's Swing Vote, his vote determining the outcome of many important decisions over his 20 years on the Supreme Court.

Reality Check Points

  • 5-4 and 4-5 opinions are actually fairly rare. Generally, six or more Justices agree on most legal issues arriving before the Supreme Court. Those that are decided on a split vote are often (for obvious reasons) the most contentious, however.
  • The "Swing Justice Kennedy" concept only really applies to issues which fall on a standard Conservative-Liberal spectrum. For example, in cases which are better described on an Authoritarian-Libertarian spectrum, Kagan is a more natural pivot point for the Court.

FILE UNDER: PLAUSIBLE CONSPIRACY THEORY

It is distinctly possible, particularly given President Trump and Senate Majority Leader Mitch McConnell's rumored lack of enthusiasm for Kavanaugh, that Justice Kennedy hand-picked his former clerk as a precondition for his retirement.

Learn More About Justice Anthony Kennedy

Anthony Kennedy official SCOTUS portrait.jpgJustice Kennedy was a particularly impactful judge during his twenty years on the court. He is an Army veteran and native of Northern California. There are multiple publications available either authored by or about him and his decisions. These include in-depth scholarly analysis of his decisions Justice Kennedy's Jurisprudenceand his own written decisions, such as his landmark marriage equality ruling.

The Current Goings On

It would be fair to say things have not gone according to plan for Republicans, as Kavanaugh stands accused of sexual harassment by, at the time of this writing, three women.

These claims are of highly unequal merit but are individually and as a group important to consider. I am well aware there's sensitivity about judging women's credibility in matter of sexual assault accusations, but it is nonetheless a thing which will happen (and has to). It's something that deserves more attention than we can give it here, and we'll explore elsewhere.

At the time of this writing, Dr. Ford has given her testimony to the Senate, as has Kavanaugh. Senator Jeff Flake (R-AZ) has voted to move the nomination out of committee, but will not vote to confirm until a one-week investigations of the claims against Kavanaugh has been completed.

The FBI Investigation has free reign and is expected to conclude the interview portion on Wednesday.

This would place the new vote, tentatively, on Oct. 5, 2018. 

The FBI report  is (as of 10/4) in the hands of Congress, and a cloture vote is scheduled for tomorrow.

All of this takes place against the backdrop of the #MeToo movement, with far-reaching consequences for the movement and society as a whole. There are many people who look on this as a potential make-or-break moment #MeToo and while these sorts of claims generally tend to be more about selling newspapers than reality, there are reasons to consider them more plausible than usual.

That said, they are far from cut-and-dry.

#MeToo in Power and Peril

The #MeToo movement was born in a somewhat nebulous fashion, rooted in the simmering anger at the unfairness women have experienced in relation to claims of abuse and assault.

Like most movements, it built over time and from many sources. Essays like Rebecca Stolnit's Men Explains Things to Me hit a nerve, reflecting a world where women can and do have the opportunity to be technical experts in any field they choose . . . but still fight against the implicit biases of men out of step with that reality.

It truly crystallized in Ronan Farrow's excellent New Yorker article outlining the decades of abuse of women by Hollywood heavyweight Harvey Weinstein. The extraordinary pressure Ronan Farrow faced against publishing only served emphasize how much power men in the media had to quash anyone who stood against them.

The movement was and has remained largely apolitical, not in the least because Conservatives rejoiced in watching a laundry list of powerful Liberal men fall from grace.

Beyond that, many of the primary voices in the movement have worked diligently to ensure men who are victims of sexual harassment are also included. The first real test of this was the revelation of Asia Argento's predatory relationship with her then-seventeen-year-old co-star in The Heart is Deceitful Above All Things, and the #MeToo movement acquitted themselves well.

This is the movement's biggest moment so far on the national stage and is consequently fraught. Among the biggest concerns is the conflating of #MeToo with #BelieveAllWomen, which would likely be a major anchor on the movement.

 

The Power

  • #MeToo has only gained steam as powerful abuser after abuser has fallen.
  • Charlie Rose, Roger Ailes, Bill O'Reilly, Harvey Weinstein, and a laundry list of other abusers have been brought low.
  • One of the most extraordinary and uplifting aspects of #MeToo is that those held to account have included men abusing men, such as Kevin Spacey, and women abusing men, even include former #MeToo unofficial spokeswoman Asia Argento.
  • Powerful people of every stripe are finding their power means very little all of a sudden.

The Peril

  • The Democrat Party has made a major effort to capitalize on Donald Trump's unpopularity with women by co-opting the #MeToo movement.
  • This is threatening to fracture the movement and collapse it into a political tool.
  • Republicans have pointed out, quite fairly, that Democrats are demonizing Kavanaugh while ignoring far more credible allegations against former President Bill Clinton and current Deputy DNC Chair Keith Ellison.
  • If #MeToo fails to remain a bipartisan movement it will inevitably lose legitimacy and power in the exchange.

Want to Learn More About #MeToo?

Well, lucky for you there are a ton of books out there on the subject, and more by the minute! Not your cup of tea? Who cares! Reading books by people whose opinions you don't agree with is the best brain food there is!

Also, consider looking at how we got here.

Revenge of the Moderates?

In a semi-shocking turn of events Friday, Senator Jeff Flake (AZ-R) announced that he would not be voting "Yes" on Kavanaugh until the FBI had investigated the claims of sexual harassment against the Supreme Court nominee.

Perhaps the most shocking thing about the announcement was that it was shocking that the Senate wanted to look into sexual harassment claims against a nominee before elevating him to the Supreme Court.

Together with the entire Moderate Republican Women wing of the Senate, Senators Olympia Snow (ME-R) and Lisa Murkowski (AK-R), he has effectively put the entire investigation on hold for a week, as mentioned above.

This flexing of muscle by Congress's ever-shrinking Moderate coalition is a major shift, as the far wings of one party or the other have had dominance since 2006 and near-total control over their respective parties since 2010.

What's Next?

That's a tough question to answer. In the immediate sense:

It depends on what the FBI finds.

Either way, expect a vote on Friday. Senate Republicans will want to either confirm Kavanaugh (if there is no evidence supporting the claims against him), or (in any other case) get him out of there as quickly as possible.

Impact on the Election

Everyone seems to agree that this hullabaloo is going to impact the election, but none of them seem to agree on how.

The fact of the matter is that there is plenty here for Conservatives, Liberals, and Moderates to be--RIGHTEOUSLY!--angry about. The entire process has been a travesty on just about every level.

Will this drive up Democrat turn out? Will it drive women to vote? Will it churn out angry Republicans? Both? Neither? Will it depress the vote across the board as weary Americans wonder what the point is when all their choices suck so hard?

I believe you could make a case for any of these outcomes.

Best Guesses:

  • If Kavanaugh is confirmed, expect a 1-2 point shift towards the Democrats in the generic vote.
  • If Kavanaugh is not confirmed, expect a 1-2 point shift towards the Republicans.
  • If Kavanaugh is cleared by the FBI in some sort of concrete fashion, expect a 3 point shift towards the Republicans applied to either of the first two scenarios. 
  • If the claims against Kavanaugh are substantiated, all bets are off.

Long-Term Fallout for the Supreme Court

First off, if Kavanaugh is not confirmed, this will be a minor disaster for the Democrats. It will rob them of their best campaign line in this election cycle, but it will do more than that.

Democrats are very unlikely to win the Senate (their chances are on par with Republicans' chances of holding the House) and Supreme Court justices only require Senate confirmation. The end result will be a more conservative nominee, almost certainly a woman. Call it 90% odds of Supreme Court Justice Valerie Jarrett by the end of the current legislative session.

There is a serious question now, though, whether Kavanaugh could ever be considered a credible member of the Supreme Court. It is entirely possible he's damaged goods any which way now.

The long-term outcomes for #MeToo are harder to pin down. #MeToo is still nascent, and still has a lot of work to do, but such organizations, particularly when they fall into the hands of extremists of whichever ilk, tend to go too far and lose mainstream support at some point.

The worst case for the movement is one in which Kavanaugh is cleared by the FBI but still not confirmed by the Senate.

Put Your Money Where Your Mouth Is

Everyone's got their opinion, are you brave enough to put yours out there? We're going to see what our readers think is going to happen.

Reality Check Points:

  • Very few women make false allegations.
  • Very few men commit sexual assault.
  • Most false accusations do fall apart.
  • Most men and women are very understanding of honest mistakes.
  • Predators take advantage of that understanding.
  • The accusers deserve to be taken seriously.
  • The accused deserve due process.
  • Due process benefits everybody.

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The Epitaph

Partisanship, by its nature, leads people to place how they want things to be ahead of how they are, which leads, inexorably to them saying and doing stupid things that the rest off us then have to live with. This issue has become partisan and, in truth, I see very little here to be partisan about.

We need to all keep in mind that important moments are rarely clean or clear to those living within them. Simple explanations for complex outcomes are the luxury of posterity.

We can't expect this to be easy or simple. We should not ask for easy or simple, because if our problems are of that ilk then we should be choosing the problems we tackle with greater ambition. It is good that we fight, it is good that are tears and shouting in the Capitol. Smiles and lazy days are a sign of complacency and we owe to our sons and our daughters more than our complacency.

If you aren't mad at the Republicans for trying to ram through a Supreme Court Justice without investigating sexual assault claims against him first, re-evaluate your priorities.

If you aren't mad at the Democrats for holding on to sexual assault allegations with no thought to the damage to a potential sexual assault victim or a potentially innocent man (and their families) until it could delay the confirmation, re-evaluate your priorities.

There is no world where we suffer for making victims of sexual assault more comfortable in coming forward, or removing more sexual predators from our midst.

There is no world where we suffer for holding those trusted with high office to the highest of standards and thoroughly vetting them to be sure they meet those standards. Even when it happens at an inconvenient time.

There is no world where we suffer for extending due process to all who stand accused of a crime, or the benefit of the doubt to all their victims/accusers.

There is no world where any of these things is mutually exclusive to any of the others. We can have it all, and, frankly, we should demand nothing less.

~ZW Out

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