Friday, October 05, 2018


It's a little after 8:00 A.M. as I type this and I don't know how the Brett Kavanaugh vote will go today, assuming it happens at all. The headline on the home page of The Washington Post still says Republicans "express confidence" that they have the votes to confirm, but Axios's Jonathan Swan quotes "a senior source" who says, "We’re going into this vote and we don’t have 50 right now."

Last night The Wall Street Journal published a semi-apologetic op-ed by Kavanaugh -- and didn't put it behind the paywall, so it could get maximum exposure, even though its intended target was clearly the three wavering Republican senators (Jeff Flake, Susan Collins, and Lisa Murkowski) and the one wavering Democrat (Joe Manchin). It might seem that Kavanaugh's nomination is in trouble because he's been credibly accused of sexual assault, but that's not what the op-ed is about. Instead, it's primarily a "may I please have a do-over?" apology for Kavanaugh's emotional outbursts and displays of unabashed partisanship in last week's hearing.
I Am an Independent, Impartial Judge

... a good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy.... Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I do not decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.

... I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said....

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years.
I don't know if it's correct to say that Kavanaugh was doing a Trump imitation in last week's hearing -- the rage and partisan anger are clearly core elements of Kavanaugh's own personality and worldview. But his outbursts were certainly Trump-esque. His testimony has been compared to Clarence Thomas's, but give Thomas his due -- in his 1991 hearings he maintained a level of composure. Last week, Kavanaugh didn't.

In the Trump era, why bother? Trump has demonstrated that you can have the temperament of a bratty child and still hold a top job in government, with the support of nearly half the country.

But maybe a few Republican holdouts in the Senate still aren't quite comfortable with that new reality, or they believe their voters aren't. (In the case of Jeff Flake, we should say "future voters," since he's thinking about a presidential run.)

No Republican is willing to take on the president -- a moment of resistance to Kavanaugh, even if it's temporary, might be the best any of them can muster. It's anti-Trumpism by proxy. Soon we'll know whether any of them will risk even that. We already know they don't have the guts to do more.

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