Opinion

The Rush to Judgment on Kavanaugh Is the Ultimate ‘Con Job’

Are there conscience-driven Senate Republicans left to stop the confirmation sprint?

Most of the win-at-all-costs excesses surrounding the Brett Kavanaugh nomination have come from Mitch McConnell and his fellow Senate Republicans, Shapiro writes. (Tom Williams/CQ Roll Call)

OPINION — In the waning days of his Senate career, Arizona’s Jeff Flake is trying to convince skeptics that, even under Donald Trump, there remain Republicans of good conscience appalled at the tenor of public discourse.

Flake’s latest declaration of independence came in the form of a Wednesday Senate floor speech on the imperiled Supreme Court nomination of Brett Kavanaugh. As Flake put it, “These past two years, we have tested the limits of how low we can go. And my colleagues, I say to you that winning at all costs is too high a cost.”

Yet most of the win-at-any-cost excesses surrounding the Kavanaugh nomination have come from Mitch McConnell and Flake’s fellow Republicans.

They have been the ones rushing through the nomination before the National Archives reviewed all of Kavanaugh’s records from his time in the George W. Bush White House. And it has been Chuck Grassley, the GOP chairman of the Judiciary Committee on which Flake serves, who has limited Thursday’s hearing to Kavanaugh and his original accuser Christine Blasey Ford — without allowing corroborating witnesses or waiting for an FBI investigation of the charges of a 1982 sexual attack.

This is not to say that all Democrats have been modern-day versions of Diogenes interested only in the truth.

[Latest Kavanaugh Allegations Send Senate Into Chaos]

During the initial Kavanaugh hearings, Cory Booker and Kamala Harris at times opted for theatrics presumably designed to further their 2020 White House ambitions. And Michael Avenatti — the limelight-loving lawyer who dramatically produced a statement from a third Kavanaugh accuser Wednesday — seems to believe that mouthing off on cable TV is the only qualification he needs to run for president.

In his Wednesday floor speech, Flake spoke with a tone of fatalism about the preordained Judiciary Committee commitment to vote on Kavanaugh on Friday. “Up or down, yes or no, however this vote goes,” he said, “I am confident in saying that it will forever be steeped in doubt.”

Watch: Trump on Believing Kavanaugh Allegations — ‘I Have to Watch Tomorrow’

Pause for thought

But as a potential swing vote on a committee with 11 Republicans and 10 Democrats, Flake has the ability to single-handedly halt the rush to judgment. While truth will always remain partly elusive about Kavanaugh’s sexual conduct in 1982, there are enough discrepancies surrounding his public claims of innocence to give anyone with an open mind pause.

In his ill-advised Fox News interview Monday night, Kavanaugh portrayed himself as that most morally upright figure since Cotton Mather. Not even a 1950s sitcom teenager would have the temerity to claim, as Kavanaugh did, “When I was in high school … I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship.”

In remarks prepared for Thursday’s hearing, Kavanaugh goes a little further as he now concedes, “I drank beer with my friends, usually on weekends. Sometimes I had too many. In retrospect, I said and did things in high school that make me cringe now.”

Of course, that image of an extra Rolling Rock or two on weekends is likely to be contradicted by Kavanaugh’s yearbook entry at Georgetown Prep.

Whether it’s boasting about his membership in the “Keg City Club” or his aspiration of “100 Kegs or Bust,” the yearbook makes it seem like Kavanaugh was auditioning for a slot in Frank Sinatra’s “Rat Pack.” And that’s not counting the New York Times’ convincing theory that the phrase “Renate Alumni” was a cruel sexual boast.

When he testifies about the yearbook Thursday, Kavanaugh may find himself in a similar position to Joshua Steiner, a Treasury official under Bill Clinton, who in 1994 had to disown his own personal diary entries about the Whitewater scandal. As Steiner’s lawyer memorably put it, “It was never Josh’s intention that the diary would be a complete and accurate recordation of historical events.”

No side story

Thursday was originally scheduled to be the day when Rod Rosenstein, the deputy attorney general overseeing the Robert Mueller investigation, learns his fate in a meeting with Donald Trump.

On Monday, Washington was reeling from rumors that Rosenstein was about to be fired or resign. Instead, Rosenstein has been left to twist slowly, slowly in the wind awaiting Trump’s triumphant return from doing a standup act to convulsive laughter at the United Nations.

Now Trump said at his Wednesday press conference that he may delay the Rosenstein meeting so his decision doesn’t overshadow the Kavanaugh hearing.

But, in any case, Kavanaugh’s fate and that of Rosenstein are entwined. There are many circumstances under which a Trump confrontation with Mueller could end up before the Supreme Court on which Kavanaugh may be serving. In similar fashion, if Rosenstein resigns or is fired, there would be high-stakes court battles over which official would be next in line to supervise the Muller investigation.

Remember that part of Kavanaugh’s appeal to Trump is the judge’s belief that a president has nearly unchecked powers to resist outside inquiries like Mueller’s while in office. Kavanaugh, of course, only came to this mature judgment after serving as a top aide to Kenneth Starr and urging him to ask President Clinton unimaginably blunt, invasive and prurient sexual questions.

Before Flake delivered his floor speech on Kavanaugh, Alaska’s Lisa Murkowski granted The New York Times an extensive interview about her anguish over the nomination. In a 51-49 Republican Senate, Murkowski and Flake have the power to slow down the rushed pace of confirmation and, if necessary, the power to reject Kavanaugh.

If, in the end, they continue to wring their hands and yet vote with Mitch McConnell, they will have destroyed the last glimmer of a belief that responsible, conscience-driven Senate Republicans actually exist. In that case, floor speeches like Flake’s may prove to be — in Trump’s words — “a con job.”

Walter Shapiro has covered the last 10 presidential campaigns. He is also a fellow at the Brennan Center for Justice at NYU and a lecturer in political science at Yale. Follow him on Twitter @MrWalterShapiro.

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