The vote won’t happen until tomorrow, but everyone’s declared his or her intentions, and Kavanaugh will be confirmed.
Many years ago, when the Earth’s mantle was still cooling, and the VCR – that’s short for “video cassette recorder” – was a rare and expensive item that few people owned, a few stores sprang up that rented not just the movies to watch (on cassette! I won’t even get into Beta vs. VHS!), but the machine in which to play them. Only God knows what sort of shape the delicate players, virtual Swiss watches stuffed with narrow-tolerance belts, gears and cogs, were left in after a few rentals to a few average boobs; most were probably about as functional as a grandfather clock after a couple of weeks in the Primate House at the Bronx Zoo. The stores, alive to the issue, had you sign these complex rental agreements that were as full of fine print as the typical home insurance policy, which, of course: (i) were carefully wordsmithed to screw the renter five ways from Sunday if anything was wrong with the unit upon its return, no matter who was to blame, or whether it was already broken when they handed it to you; and (ii) nobody without a lawyer in train would have any hope of understanding before signing. Well, my brother was a lawyer, but he didn’t read it either, when we went to rent a couple of videos one evening. When the clerk asked him whether he wanted to look it over before inking it, Mark just said “No, I know what it says. It says you win, I lose”.
That’s always what it says.
We lawyers have a term of art for the things you get handed to sign (or accept by clicking “Agree”, these days), with no negotiation, take it or leave it: “contracts of adhesion”. It sounds about right doesn’t it? Adhesion. Like, you stand there, hapless dupe that you are, and they sort of glue it to your ass, leaving you stuck with it no matter what it means, which, how the hell should you know, if the shit hits the fan you’ll find out then.
This is what always happens when you don’t have leverage. You get the adhesion. You get to heartily agree to the thing that says “Oh, yes, please do bend me over a sofa!” And that’s just what the Democrats got when they were thrown a bone last week, and it was decided to have the FBI investigate Kavanaugh after all. It was an investigation of adhesion. It was a screw job. Of course it was. They didn’t actually try to find anything probative, they were in fact ordered not to, but the Republicans still get to call it an “investigation”, and now they get to say that it didn’t uncover anything new, so eat that, ya stinkin’ Dems, and let’s vote.
The overwhelming majority of the Senate Republican caucus didn’t really care anyway, it wasn’t that they didn’t believe Kavanaugh was guilty of various forms of sexual assault during his debauched youth, it was that they didn’t care, any more than they cared that the Judge was obviously temperamentally unfit for the position. For the few that wavered, erstwhile hero Jeff Flake and perennial coward Susan Collins among them, the sham investigation furnished the cover they needed to go ahead and follow their instincts. As for Democrat Joe Manchin, who waited for Collins to declare so he’d have the safety net he needs to vote yes – his won’t be the deciding vote – well, he wants to keep his seat, but I’d love to know why, what good he thinks he does for anybody but himself – though on the other hand, really, who cares? He can justify it any way he wants. This was a defining moment, and he failed the test. I hope he gets the boot in November.
Say, if anybody out there wants to make a fortune, you should just ask me what I’d like to see happen, and then bet the mortgage against it.
There are two tragedies here. The first, perhaps avoidable, is that we get an angry, vengeful probable sex offender on the United States Supreme Court. The second, all but inevitable, is that we get a Supreme Court stacked with heartless right-wing idealogues for years, perhaps decades, to come. If it wasn’t Kavanaugh, it’d be somebody just like him picked at random from the Federalist Society’s list of 24, some of whom hold views even more retrograde and vile than any thus far expressed by Kavanaugh.
Look, this is, as others have noted before me, a slow-motion coup. I’m not going to repeat in its tiresome entirety my standard screed about Project Red Map, gerrymandering, voter suppression, and so on, but to boil it down it comes to this: a bunch of truly awful people, nearly all of them white men of privilege, but including some white women of similar privilege, accompanied by various hangers-on and abetted by a legion of dupes in the general public, have engineered a nearly permanent minority rule in America. Upper class white minority rule. It took them years. The scope of the effort at all levels of government has been breathtaking, and now they’ve pulled it off, aided mightily by the strange indifference to midterm elections exhibited by Democratic voters, who let the Tea Party, which now calls itself “the Freedom Caucus” – oh, those white guys, what a sense of humour! – take over Congress during the Obama administration.
Now that the final piece has fallen into place, and their Supreme Court is stacked, liberal Americans, who were pretty much asleep at the switch for more than a decade prior to Trump’s election, will awake to find themselves living in what amounts to an entire society of adhesion. Case after case will now proceed, brought by right-wing interest groups and right-wing state governments, seeking to overturn every law that protects the weak, the powerless, the disadvantaged, and the increasingly poisoned environment in which they live, and there probably isn’t much that the political process can do to stop it, even supposing white people stop voting against interest and send somebody besides the bought and paid for tools of their plutocrat overlords to Washington. All laws are subject to the whims of the old men and women on the Supreme Court.
Is there anything to be done? Maybe. It all comes down to who next retires from the Court, who’s in the White House at the time, who contemporaneously controls the Senate, and whether, should Republicans hold sway in what many of them still refer to, presumably ironically, as “the world’s greatest deliberative body”, the GOP is again willing to pull Mitch McConnell’s stunt of refusing to offer any advice and consent at all for any nominee they don’t like. A lot of things thus have to break the Democrats’ way before there’s even a ghost of a chance to set things right. If the Democrats ever again control the Senate and the White House at the same time, they might get the chance to replace a retiring conservative judge, but by that time Trump may well have made further appointments, or it might simply fall on a Democratic president to appoint successors to the minority Justices. Among the liberals who now sit on the Court, Ginsberg is 85, Breyer is 80, and Sotomeyor has diabetes.
It doesn’t look good.