Henry Farrell, in a thread on Twitter, makes the case that Kavanaugh’s confirmation could have been worse: he might never have been exposed as a radical partisan hack who abuses his power for sex. And now we’ve seen how extreme the Republican Party has become. They could have withdrawn his nomination after Kavanaugh demonstrably lied multiple times under oath, and refused to even answer whether he’d support an investigation; then they could have proffered someone more professional and experienced. Instead, they’ve shown they’ll put party before country, literally just to “own the libs.” We now know, without a shadow of a doubt, that the national-level Republican Party has lost control of itself, and for the sake of the country must also lose control of at least the House in November. If people really want to “drain the swamp,” we need to start with the GOP in Congress.
Continued:
2. The background: Supreme Court judgments have been undermining democracy in stealth mode. A series of judgments have chipped away at the ability to regulate money in politics, while stripping unions of their ability to politically represent the interests of their members.
3. The result has been an increasingly unbalanced political system, in which economic inequality and political inequality reinforce each other, slowly strangling democracy. However, these judgments have not been nearly as controversial as they ought to be.
4. The survey evidence is clear - people on the left do not see the court as conservative (political scientists disagree over whether this is because they don't understand what the court is doing, or they focus on salient cases that have liberal outcomes - e.g. marriage equality)
5. Kennedy's retirement and replacement by a Trump nominee means that the median justice on the left-right spectrum is going to be Roberts - a very substantial shift to the right. But liberals and people on the left mostly haven't paid attention.
6. This is reinforced by patterns in the legal academy. The Federalist Society combines many functions. It depicts itself as a "society of ideas," but also serves as a hiring network for conservative clerks, cheering section for crazy ideas and vetter of judicial nominees.
7. The Federalist Society's Leonard Leo has played a crucial role in both Gorsuch's and Kavanaugh's nomination. While Federalists quietly fret at Trump's uncouthness, they're willing to hold their noses given the gains at stake. See Amanda Hollis-Brusky: Washington Post: Breaking News, World, US, DC News & Analysis Breaking news and analysis on politics, business, world national news, entertainment more. In-depth DC, Virginia, Maryland news coverage including traffic, weather, crime, education, restaurant revie… https://www.washingtonpost.com/news/monkey-cage/wp/2017/05/17/trumps-values-are-abhorrent-to-the-federalist-society-of-conservative-lawyers-that-doesnt-stop-them-from-helping-him/?utm_term=.7eb43b4309b1
8. That's the background. And that is why what seemed likely to happen a few weeks ago - the confirmation of soft spoken and charming-seeming basketball-coaching dad Brett Kavanaugh - would have been the worst outcome. His vile behavior towards women would have stayed invisible
9. And his jurisprudence - undercutting the rights of ordinary people, weaponizing the First Amendment, and further reducing American democracy into an effective oligarchy would have not seemed political, consisting instead of a series of technical-seeming decisions.
10. Now that's not going to happen. He is almost certainly guilty of two attempted sexual assaults. He has demonstrably perjured himself in testimony. He has revealed the true ugly face of American Republicanism. And he can be hung like a rotting albatross around his party's neck
11. His distorted, shouting face is the most concrete metaphor possible of what the Republican party has become. And it is something that people can - and will - organize around. The difference to Anita Hill is that there is _already_ a mobilized social movement around Trump's
12. wretched treatment of women. Now they have something concrete, specific and political - beyond Trump himself - to build against. In the language of social movements, Brett Kavanaugh is going to become a frame - an organizing symbol
13. depicting the angry white conservative elite that is trying to cripple American democracy because it knows that the democratic trends are not on its side. A quiet judicial revolution that was invisible to most people is now becoming visible in its harshest and ugliest form.
14. And this gives the movement a set of concrete problems that it can organize around apart from Trump. Movements in US politics are often the prisoners of electoral politics, and can fall asunder once a short term victory has been achieved.
15. Lindsay Graham and Donald Trump may inadvertently have crystallized a new Democratic party that is based far more than before in a mobilized and effective social movement with a long term vision and specific demands for reform.
14. The Federalist Society three-card monte, shuffling back and forth between the public story of intellectual inquiry and the private story of political machinery is highly vulnerable. If the Democrats take Congress, they need to investigate Leo's role in the nomination
15. With particular attention to the question of how or whether Leo provided a cutout between the political and nominally independent parts of the pro-Kavanaugh campaign, including the Whelan doppelganger propaganda.
16. The enormous movement of women which has coalesced across the country needs to keep pressure on elected Democrats on both judicial nominations and investigations, as well as continuing to nominate and elect its own people.
17. Pro-democracy groups need to plaster Kavanaugh's ugly, shouting face over every shitty and toxic decision made by what is now the Trump Supreme Court and the Republican Supreme Court, haranguing and hounding the politicians who got him through.
18. The Supreme Court is political. Everyone from the lightly-liberal center to the left needs to recognize this, and what it means for their own politics and activism.
19. Legal academics need to systematically dissociate themselves from the Kavanaughs of this world, and refuse to provide window dressing to Federalist Society events. There should be room for conservative scholars in the legal academy. But Kavanaugh
19. demonstrates how problematic the pseudo-meritocratic class solidarity of the legal academy has become. Again, the Supreme Court is a political body. One might reasonably prefer a world where it was genuinely deliberative but that is obviously not the world that we live in.
20. Professors may of course need to be strongly reminded of this by their students, as has been happening in Yale, since not only their values but their incentives point towards playing nice with conservative judges who can hire their students etc.
21. And scholars need to build a strongly pro-democratic jurisprudence of the kind that @JedediahSPurdy and @ksabeelrahman have been working on (which would ideally involve not just left-wing but also centrist and right leaning scholars, as Law and Economics did the other way)
22. All this - of course - is making lemonade from lemons. We shouldn't be in this situation to start with. There are many things that can and will go wrong. But the sheer grossness of what is happening makes the Kavanaugh nomination into an inadvertent organizing technology. End