How the Republicans Broke the Senate in Confirming Kavanaugh

The fight damaged constitutional democracy and brought lawmakers closer to intractable dysfunction

October 8, 2018

Dr. Christine Blasey Ford and Deborah Ramirez can’t forget the laughter as they were sexually assaulted: a hand pressed over the mouth and a penis shoved into the face. Saturday, Senate Majority Leader Mitch McConnell (R-Ky.) cracked a small smile as women protesters in the chamber’s gallery were dragged out, their screams of “shame, shame, shame” falling to the floor as the vote to confirm Judge Brett Kavanaugh to the Supreme Court was underway.

What is the sound that a constitutional democracy makes as it slides toward intractable dysfunction? Is it the self-congratulatory applause as a swing vote like Sen. Susan Collins (R-Maine) falls in line? Is it the cavernous silence that greets a maverick like Sen. Lisa Murkowski (I-Alaska) as she takes a stand against elevating a man credibly accused of sexual assault to the highest court in the land? 

Maybe it’s just the sound of champagne bubbles bursting as they rise to the top of Majority Whip John Cornyn’s flute when he celebrates Kavanaugh’s confirmation. More likely it’s the monotonous sound of fifty “ayes” from senators who represent less than 45 percent of the population voting to solidify their party’s grip on the Supreme Court.

Democrats pondering their bitter defeat are already pointing fingers at one another, blaming Sen. Dianne Feinstein (D-Cal.) for mishandling Blasey Ford’s letter or Michael Avenatti for seeking the spotlight with a third accuser. But no amount of tactical brilliance was going to change the outcome. Republicans executed a brute power play. A letter from one woman about an awful event more than 35 years ago was nothing against a decades-long, well-funded effort to remake the federal judiciary. 

As they executed this particular play, Republicans went a step further and shoved aside all pretense that the Senate is a representative, competent decision-making body. Destroy the process, threaten anyone who stands in the way, gaslight your opponents if possible — the will to power was unrelenting.

They started by making a mockery of the process for confirming a Supreme Court justice. In the past, a full inquiry into a nominee’s record was standard practice. That meant delving into their trail of documents, however tedious and time-consuming. Oftentimes, it meant fruitless trawling through quotidian emails and memos. So be it. Thoroughness was a virtue. But in Kavanaugh’s case, 90 percent of the documents from his time as a high-level partisan operative in the George W. Bush White House remained hidden. Then in an unprecedented move, 100,000 pages were shielded from scrutiny with a flimsy assertion of executive privilege. Many of the documents that were turned over were further protected from review with rickety claims of “confidentiality.” And when all else failed, the midnight document dump was in order. On the eve of the hearings, 42,000 pages were handed to committee members; Republicans playacted that they had read “each and every one” of the pages. 

When Blasey Ford and Ramirez’s allegations against Kavanaugh could not be ignored, the Republicans knee-capped any effort to fully air them. They first staged a pro forma hearing for Blasey Ford, fending off any efforts to fully present corroboration. Then, when forced to okay a further FBI inquiry into the allegations, the White House hit the brakes on it, fearing it “would be potentially disastrous.” With 10 witness interviews in hand, Republican senators managed to construct a façade of an investigation. 

Then, they moved on to threats. Their displays of rage, scorn, and revenge overwhelmed any Democratic efforts to cool things off or slow things down. Despite conceding that Blasey Ford’s accusations were credible, Republicans embarked on a campaign to convince the public that it was all a hit job. And “what goes around comes around,” Kavanaugh threatened members of the Judiciary Committee. Senator Lindsey Graham was even blunter: “Let me tell my Democratic friends, if this is the new norm, you better watch out for your nominees.” More immediately, Graham and McConnell are planning a “wholesale, full-scale investigation of what…was a despicable process to deter it from happening again.” Feinstein is in their crosshairs.

Of course, a little bit of Orwellian doublespeak never hurts. Kavanaugh’s partisan rant when he testified a second time — where he called the process a “disgrace,” Democratic behavior “an embarrassment,” threatened the nation would “reap the whirlwind,” verbally disrespected several Democratic senators, and descended into baseless conspiracy theories — well, he was just speaking emotionally. The real Kavanaugh, he later proclaimed in the Wall Street Journal, is impartial and possesses a fine judicial temperament. Pay no attention to what you just saw and heard, unless it’s useful for unleashing the partisan storm needed to win confirmation. In which case, stick with the program. 

No one is better at Orwellian doublespeak than McConnell, who exhorted his fellow senators to back Kavanaugh and “vote to turn away from the darkness.” After the vote, one reporter said McConnell looked “as happy as I’ve ever seen him.” A few blocks away, the Capitol Police were still processing more than 150 protesters arrested that day. As it turns out, the fearsome “mob rule” that Republicans were so angry about can be contained if you issue enough zip-tie handcuffs to the police.

Many men build bonds of loyalty by putting women in their place. Senate Republicans did so much more than that when they put Kavanaugh on the Supreme Court. They broke the Senate for the foreseeable future. 

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Getty)