By Michael Davidow, Radio Free New Hampshire
Who remembers Merrick Garland, the empty suit that President Obama nominated to the Supreme Court?
He looked like your kid brother, if your family consisted of cut-out lawyer dolls. Senate Majority Leader Mitch McConnell wouldn’t move that nomination forward, because Obama only had one year left on his term in office, and McConnell had been practicing how to hold his breath for that long.
Look what happened then: Trump won; the lawyers, judges, and citizens of America rose up as one to demand that Garland be considered anyway, because McConnell’s actions had represented the worst sort of partisan demagoguery; Trump decided to show his independence by doing exactly that; McConnell had a heart attack and quit; Garland was confirmed; and of course none of that happened. Trump nominated Neil Gorsuch, and Gorsuch ate Garland’s lunch. Surprise.
Garland, anyway, was a standard-issue Clinton-Obama “democrat,” who believed in things like gay rights, Black Lives Matter, and Wall Street’s uncontested right to dominate the natural world. He also had the look of the kid who got beaten up every day at school, and the kid who beat him up was Brett Kavanaugh.
We know Brett Kavanaugh. We have all known dozens of him. I can’t bring myself to write about him, though. As an American, I am too busy feeling sick.
His nomination, that business about what happened at a Bethesda beer bash thirty-five years ago, his reaction to that business– the whole thing was a dog’s lunch of sadness, bile, and evil.
But to write about the Supreme Court seems more worthwhile, not least because it is so misunderstood. I have heard people argue of late that its workings should be above politics, for instance; that Kavanaugh’s nomination was political; that ergo Trump did something bad, making things political.
Yet starting with that simple contention, the Supreme Court has always been political. It consists of people in public life, placed there by other people in public life. The problems raised by Kavanaugh’s elevation to the bench can’t lie in the process that produced him then. Those problems lie in the politics underlying that process: a politics of cynicism, vanity, and air.
Look, for instance, at Sue Collins of Maine, making her latest mark on our nation’s history (the platypus has shown her stripes). What business does this woman have, remaining in the Republican party?
The one she joined, I can only assume, for its opposition to Jim Crow, its disdain of machine politics, its enlightened internationalism and its defense of moral tradition (perhaps she has personal access to a time machine, so her allegiance to that brand still makes sense to her).
She actually had the nerve to specifically defend her vote for Kavanaugh by saying she trusted him to keep abortion legal. What touching faith in his character, and how “moderate” she manages to sound, too — always willing to buck the far right wing of her party (which consists of her entire party, except her).
Because that’s what it’s all about, after all: whether Kavanaugh will flip on Roe v. Wade. Which is interesting, and pathetic, and finally insane, because from listening to the standard Republican line on this subject, you would think that not only do Democrats travel the country forcing young women to kill their fetuses, but also that swinging the Court on this issue will solve that problem, once and for all: that Democrats will surrender and start bearing children again (lots of them, whether they want to or not).
Well, they won’t. They will just keep fighting. And we’ll be having these same arguments, ten, twenty, and thirty years from now. The Republicans can’t make progress on abortion, in other words. They can only continue to sow discord, because that’s how things go, when you mandate morality from the bench. Those who do not share your moral code do not appreciate having it foisted upon them.
Example Number Two: Earl Warren, whose court issued opinion after opinion, advancing causes like racial equality and minority rights. Conservatives inveighed against him, and liberals mocked them for being neanderthals. But speaking factually, Warren was a lifelong politician, a former governor of California who had once entertained serious thoughts of running for the presidency, and many legal scholars criticized him for lacking a legal mindset; for using the bench to press his political agenda. If you want social change, they argued, it has to be social. It can not be imposed from above. And if that sounds familiar, it should.
In a democracy, progress depends on us all, not on the chosen few. We can now see the results of our county’s having forgotten that fact, and his name is Brett Kavanaugh.
Michael Davidow is a lawyer in Nashua. He is the author of Gate City, Split Thirty, and The Rocketdyne Commission, three novels about politics and advertising which, taken together, form The Henry Bell Project. His books are available on Amazon.
Views expressed in columns and opinion pieces are those of the author and do not reflect those of InDepthNH.org.