Who Do They Think They’re Foolin’?

The Republicans on the Senate Judiciary Committee were deeply concerned about how it would look for an all-male panel of Republicans to cross-examine a woman who alleges she was sexually mauled by Supreme Court nominee Brett Kavanaugh. Normally, politicians jump at the chance to be on television, but not this time. In a vain and misguided attempt to give the appearance of sensitivity and sincerity, they hired a female prosecutor from Arizona with extensive experience in sex crime prosecution to do their dirty work for them. They must have forgotten that it might not look so good for a professional prosecutor to be, in effect, prosecuting a victim, even if that prosecutor is a woman.


It had the appearance of a bullfight. Long before the matador first fights and then kills the bull with a dramatic thrust of his sword, assistants tire and break down the bull with barbed sticks (banderillas) placed by banderillos and sharp lances thrust into the bull’s heavily muscled neck by mounted picadores. If this was not done, the bull would not be manageable. Make no mistake, they did intend to kill this lady, but they wanted someone else to break her down.


As it turned out, if the intent was to discredit and break down the accuser, the lady prosecutor was ineffective and so were the Senators. By the end of Thursday and into Friday, all the Senators were back to making passionate speeches with a heavy dose of righteous indignation and threats.


As of late Friday, it was reported that retiring Senator Jeff Flake of Arizona was brave enough to call for an FBI investigation and a delay on the final vote. Was this a public relations ploy or real bravery? Who knows?


Did it have to be this way? I think not.


Let’s imagine for a moment that Brett Kavanaugh had not been nominated and that Trump had a sincere desire to nominate someone who was both qualified and had a good chance of being confirmed without a brawl. What would our hypothetical nominee look like?


I would like to think that our hypothetical nominee would have these characteristics:

Humble to average family financial circumstances; attended public schools, a public university and a public law school; actually practiced law for a considerable number of years with experience representing ordinary people rather than the Fortune 500; actual jury trial experience as a lawyer; considerable experience as a trial judge; some experience as an appellate judge; no history of political activism in Washington; and, no membership in nor allegiance to any group that advocates the idea that the law should be used to advance some partisan cause or objective. I strongly believe that our hypothetical nominee would be easily confirmed and that such a person would provide needed balance to the Court.


On the other hand, let’s look at Kavanaugh. Affluent family background; father was a lobbyist, his mother is a judge; attended private schools and an elite boys’ prep school; attended Yale and Yale law school; clerked for Republican federal judges; worked for special prosecutor Ken Starr on 2 occasions; worked very briefly for the firm of Kirkland & Ellis, one of the largest firms in the world; never tried a case to a jury; served in various capacities in the Bush Administration; was appointed by George Bush to a federal appellate bench, but his confirmation was controversial and was held up 3 years; has never actually practiced law in the traditional sense; has never been a trial judge; has been a Republican operative for years; has been groomed by and is endorsed by the Federalist Society; and, has written legal opinions, articles and given speeches that identify him with points of view that are far to the right of center.


If you had a check list for a nominee that was bound to be controversial, Kavanaugh’s background checks every box. Even his earlier nomination to a federal appellate court was highly controversial. It is not reasonable to believe the Trump Administration did not know what was coming. This was intentional , totally foreseeable and it served Trump’s purpose.



Republicans will say that Kavanaugh’s credentials make no difference, that Democrats would oppose whomever was nominated. That might be true, but if they opposed my hypothetical nominee they would look foolish, mean, vindictive and not acting in the best interest of the country.


One last thing. I think it is commonly believed that the Trump base is at least partially populist in character. There is absolutely nothing in Kavanaugh’s elitist background that logically should appeal to the base other than his rightward tilt on abortion, religion, etc. If Trump really wanted to deliver a poison pill to the Democrats, he should have looked beyond the list prepared by the Federalist Society and nominated a ‘man of the people.’

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