Toobin writes: "Donald Trump and Brett Kavanaugh looked and sounded very different, but those appearances deceived. Both men were pulling the country in the same direction, toward more inequality, more pollution, and, to put the matter bluntly, women once more dying from botched abortions."
Judge Brett M. Kavanaugh appeared before the Senate Judiciary Committee for his Supreme Court nomination hearing. (photo: Doug Mills/NYT)
09 September 18
Last week, the impetuous President and the thoughtful Supreme Court nominee seemed very different, but they share an agenda for the country.
he past week in Washington offered what appeared to be a startling contrast: on the one hand, tales of a President unhinged, issuing garbled, contradictory commands to appalled aides who were conspiring against him; on the other, a thoughtful Supreme Court nominee, calmly parrying the futile assaults of a frustrated senatorial minority. Donald Trump and Brett Kavanaugh looked and sounded very different, but those appearances deceived. Both men were pulling the country in the same direction, toward more inequality, more pollution, and, to put the matter bluntly, women once more dying from botched abortions.
Regarding the President, the week featured twin elaborations of the obvious—that he is dangerously unfit for office. Bob Woodward’s new book, “Fear,” which began circulating on Tuesday, portrays Trump as ill-informed, incurious, impetuous, and mendacious. In one already oft-quoted passage, Woodward asserts that John Kelly, the White House chief of staff, said of Trump, “He’s an idiot. It’s pointless to try to convince him of anything. He’s gone off the rails. We’re in crazytown.” (In one of many artfully crafted denials from Trump insiders that wafted through Washington last week, Kelly said he did not call the President an “idiot.”)
Then, on Wednesday, the Times published an Op-Ed by a “senior official in the Trump administration,” who reported that he or she is part of a secret group of insiders who are trying to protect the government, and the country, from Trump’s various pathologies. The group, the official wrote, was acting to “preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office,” adding, “The root of the problem is the president’s amorality.” What made the two indictments of the President so striking was that they reaffirmed each other and that their harsh judgments came not from Trump’s political enemies but from his allies—from the denizens of crazytown itself.
Kavanaugh’s pleasant manner, meanwhile, seemed well suited to the content-free banalities that are the customary form of expression for Supreme Court confirmation proceedings. The Administration officials who escort nominees through the process do their best to make sure that the hearings withhold, rather than disclose, information. Still, nominees can’t help but reveal at least something of themselves. Consider Kavanaugh’s litany of self-praise in his opening statement. He has ruled, he said, “sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners.”
Coal miners? It wasn’t soot-stained laborers who faced off against environmentalists during Kavanaugh’s twelve years on the United States Court of Appeals for the D.C. Circuit but coal companies, and they and other polluters have been this judge’s favored litigants. The reason for this disposition came out in a seemingly innocuous colloquy between the Judge and Senator Orrin Hatch, of Utah, about “Chevron deference.” In the 1984 case of Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court found that judges should defer to Administration agencies, such as the Environmental Protection Agency, in how to interpret federal law on issues like air-quality standards.
Kavanaugh has been a key figure in the attacks on Chevron, and thus very much appreciated by polluting industries and the Chamber of Commerce, which want to insulate themselves from regulatory oversight. But you’d never know any of this from his opaque answer to Hatch. “I’ve heard it said I’m a skeptic of regulation. I’m not a skeptic of regulation,” Kavanaugh said, with wounded innocence. “I’m a skeptic of illegal regulation, of regulation outside the bounds of what the laws passed by Congress have said.” That is nonsense. Deprived of the right to interpret what the laws mean, administrative agencies can do very little, even if they are inclined to act. Of course, Trump’s agencies have been doing industries’ bidding from the other end of the process, by not regulating them in the first place, or by weakening the rules put in place by previous Administrations.
On abortion, still the most contentious issue before the Court, Kavanaugh had the same problem that all recent Republican appointees have had: conservatives want to overturn Roe v. Wade but the public, overwhelmingly, does not. So he dissembled, describing the case as “settled law.” That is a meaningless phrase: all Supreme Court decisions are “settled” until a majority of Justices decide to unsettle them, which is what the candidate Trump promised that his Court nominees would do, particularly on Roe. In 2003, when Kavanaugh was a lawyer in the George W. Bush White House, he sent an e-mail, revealed during the hearings, in which he commented on a draft of a piece that stated, in effect, that scholars believed that Roe would endure. Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” In 2018, with Kavanaugh, that number is likely to be five—a majority.
On one level, it is absurd to have to do this kind of archeological excavation to determine the answer to a simple question: Will Kavanaugh, if confirmed, vote to overturn Roe? It would be a lot easier just to ask him. But the antediluvian customs of confirmation hearings allow nominees to duck such queries, so the real research on nominees now goes on during the selection process, rather than the confirmation hearings. And we know that this President outsourced the selection of his pool of potential nominees to a pair of right-wing outfits, the Federalist Society and the Heritage Foundation. Neil Gorsuch, who came from that same pool, now shares the far-right ideological niche on the Court with Clarence Thomas.
There is, by now, a pattern to the Trump Presidency. As Woodward’s sources and the Op-Ed “official” confirm, the President staggers from one self-generated crisis to the next, shedding or collecting allies as the mood strikes him. But, from the time of the campaign, Trump has recognized that he will have the freedom to behave in this manner only if he keeps his promises on what his base really wants—a Supreme Court that indulges corporations and rejects abortion rights, among other priorities. Last week only presented in distilled form what has been on sprawling display since January, 2017. Trump and his enablers have decided that they can live with the status quo; the question for the rest of us is whether we can.
