Let The Circus Continue! Kavanaugh Hearing Day 2 Preview

Welcome to Day 2 of the Kavanaugh hearings where the stakes are higher and the chances that a Supreme Court nominee straight up tells us he’s pretty sure segregation was a good thing increase! Yesterday, we had handmaids, interrupting protestors, a complete breakdown in basic procedure, haunting images of the nominee running like a cur from honest engagement, something about the merits of the semicolon. It was a circus like nothing the United States Senate has seen since the good old days when Senators randomly beat each other with canes, which may be just around the corner. Make CSPAN Great Again.

Oh and just for good measure, we also got the subtle white power sign yesterday:

https://twitter.com/rubin_kd/status/1037033721235263488

That’s former Kavanaugh clerk Zina Gelman Bash who recently left the White House to work for Ken Paxton. Was this oh-so-subtle gang sign intentional? Well, try to rest your arm naturally like that. Her husband, U.S. Attorney John Bash, labels these criticisms as “repulsive” and says his family isn’t even familiar with the white power symbol. So, I guess go ahead and be terrified that a U.S. Attorney claims he has no clue about the pervasive symbology of domestic terror groups he’s supposed to be prosecuting!

But today will be the day we feast on the real red meat of these hearings. Today is when we’ll hear Kavanaugh asked about Brown and his role in America’s torture shame and just maybe how he spent most of his adult life managing Judge Kozinski’s hiring. It’s when Democrats try to build a case that might make Susan Collins wake up long enough to wonder if she has a Moose bladder’s chance of being Governor of Maine if she becomes the deciding vote to overturn Roe. Spoiler alert: she doesn’t care.

Each Senator will take turns in order of party and seniority asking the tough questions that ultimately won’t impact Kavanaugh’s nomination as much as provide the needed soundbytes for a million 2020 campaigns.

Today, for the record, is also why the Democrats are sticking around this sham of a hearing. Some will argue that the Democrats should have walked out of the hearing like 4-year-olds to “get tough” and “fight fire with fire,” but all this adolescent talk is just a political placebo. They want an empty display of “power” because that’s the only way they can imagine measuring a politician anymore.

If anyone’s looking for the roots of this worldview, look no further than Fox News and MSNBC for making their livings off fluffing marginally engaged partisans into enough righteous anger that these relatively comfortable viewers can feel they’ve performed their citizenly duty for the day by getting steamed about something mostly outside their power. The networks daily manufacture discursive failure based on vapid arguments via talking points that end in an attention span-friendly 3-5 minutes. If nothing’s resolved within half an hour then no one must be trying.

But if you want to fight fire with fire, the arsonist always wins.

Donald Trump’s in office because of a rich tapestry of white fragility, sexism, voter suppression efforts, and failed Democratic outreach, but the umbrella hovering over all of these is Trump’s understanding that the combination of shallow argument and the Manichean worldview that the “very fine people on both sides” of the cable news wars traffic in only succeeded in creating a subculture fascinated with authoritarianism. The cult of personality is a simple narrative for media to package into their bite-sized perversion of news and Trump seized on that.

Democrats have a lot of problems, but “needing to act more like Republicans” isn’t any of them. “Triangulation” used to posit that Democrats needed to take more and more conservative policy stances to win. Now that logic’s been ported into believing they need to behave more and more like the authoritarians across the aisle.

It won’t work because the parties have fundamentally different victory conditions. Democrats can’t fully embrace a “burn everything down” strategy because ultimately, they WANT to govern. They need a system capable of producing forward movement and that’s built on strong norms that prevent wild swings undermining policies every few years. The Republicans, on the other hand, WANT government largely dismantled. From Mitch McConnell’s perspective, if the entire Senate grinds to a halt that’s just fine with him. He’d accept getting no judges at all — which he more or less did during the Obama years —  to get no new taxes, no new gun restrictions, no new environmental regulations.

Is there any solution for the Democrats? Sure, stop trying to be Republicans but harder, faster, and sexier. It’s the filibuster argument all over again, when Democrats convinced Harry Reid to nuke the filibuster for lower court judicial appointments only to see the Republicans take that ball and run with it at the first opportunity. McConnell might have done it anyway, but Democrats just casually readjusted that Overton Window to give McConnell all the cover he needed.

During the filibuster debate, instead of endorsing the core premise of the filibuster and throwing a few exceptions on it, Reid could have followed Senators Merkely and Udall who were calling for a complete overhaul of the whole concept that would have ended the cozy practice of giving the minority a consequence-free legislative roadblock entirely. It would’ve repaired the hack with a new, fair procedure instead of papering over it with a quick fix.

There’s probably no way of stopping Kavanaugh at this point. Maybe this process will gin up enough anti-abortion rhetoric to give Susan Collins the willies, but it was almost assuredly over before it began. If Democrats want to save the Supreme Court, it’s time to start arguing for term limits. Laurence Tribe’s explained how this can be done legislatively without running afoul of the Constitution. It’s not another round of court packing, which just gives the victor another cheap score before what goes around comes around in worse fashion. When people think “everyone does it” then there’s nothing left. Blow up the game! Take the Court out of the hands of the bad actors. Force them to  defend the monarchical Court and explain why it’s bad that they don’t have to abide by a “two justices per term” policy.

If people are unsettled by the idea of placing an open authoritarian on the Court, the answer needs to be a robust defense of norms. The current crop of elected Democrats may not have the chops to forge those innovative solutions, but smashing what’s left unless they get their way isn’t going help either.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.