Mulhall column: Fear and loathing on the Supreme Court trail
October 11, 2018
News about the Kavanaugh nomination left me with more questions than answers, and I came to accept I might never know the truth about the Justice's teenage involvement with Dr. Ford.
What was clear, however, was that the process of Senate advice and consent had become a carnival freak show that not even Dr. Gonzo would touch.
There was a time when a judiciary committee would ask a SCOTUS nominee about matters that had come before the courts and judicial concepts like stare decisis, but no one born after about 1971 has ever seen this in action. Maybe it was a dreary process, but it worked.
Advice and consent began to change in 1987 when President Reagan nominated Robert Bork.
That's when Ted Kennedy conjured that a Supreme Court with Bork on it would lead to "back-alley abortions," segregated lunch counters, and public school curricula void of evolution. Whether true these claims did nothing to discern Bork's juridical abilities, but they did predict a rotten future.
Nevertheless, while that 1987 judiciary committee tried to stick to the traditional script, a groundswell of opposition developed outside the halls of Congress, and someone leaked Bork's video rental history to the Washington (DC) City Paper.
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Now this was a time before streaming video, Blue Ray, or even DVR. MTV was six years old, "everybody wang chung tonight" was the lyric du jour, and VHS was on the verge of killing Betamax.
For non-network TV entertainment, you stopped at a video store like Blockbuster on your way home from work, and, if you were lucky, the movie you wanted was still on the shelf.
This public-library approach to film fare was fine if you hadn't seen "Back to the Future," but not so much if you wanted a new release like "Ferris Bueller's Day Off."
It also provided an easily traceable record of a person's video watching history.
Bork's anonymously leaked video diet included "A Day at the Races," "The Man Who Knew Too Much," and "Ruthless People," flicks that failed to produce the kind of scurrilous inferences no doubt hoped for, but the paper published it anyway.
Outing Bork's video list was a feckless attempt to gin up public opposition, but the Kavanaugh hearings, like others before it, prove that once Senate Democrats get locked in, the tendency is to push it as far as they can.
The central problem for Schumer and Feinstein was how to smear a Catholic, DC Court of Appeals judge who probably never wore jeans to work and may have saved money by crawling into bed smelling of laundry detergent and starch.
They chose a stereotype of unbridled testosterone, booze and money—you know, the kind of dripping masculinity you might see in a post-adolescent lacrosse player, lathered and pungent with athletic exhaustion, walking off some ivy league pitch and wrapping his unwashed arm around the pink-cashmered shoulders of the coed he affectionately calls "Buffy" but avoids taking home to mom and dad.
To Schumer and Feinstein this was ideal. It was at once the Duke lacrosse scandal and Al Sharpton through a bullhorn blasting Tawanna Brawley accusations of rape and sexism and white privilege.
Add to that a "Have you stopped beating your wife" premise, a herd of jittery lawyers, and a stack of FBI 302s and you have the Kavanaugh hearings.
The effect, of course, took the nomination beyond any Constitutional definition of advice and consent and into the realm of public discourse, where uninformed opinion could be further polarized along party lines, crowbaring senators of both parties into a nervous analysis of which stance miffs the fewest voting constituents.
That design, at least, worked quite well, too. No one I read or talked to failed to intensify their first impression of judge Kavanaugh, which turned out to be a remarkably accurate reflection of party affiliation.
Now, Justice Kavanaugh is either an unapologetic drunken misogynist or a well-qualified jurist, and the Republican majority in the Senate's either a bunch of old white guys keeping the oppressive plantation patriarchy alive, or a bunch of folks trying to do what's right.
In any case, the twisting of advice and consent has come a long way in the last 30 years, from a video rental history to yet another uncomfortable tromp through Clintonesque bit lips and shame, where outrage matters, people are pawns, and truth is wholly incidental.
Today there are two octogenarians on the Court.
Any self-respecting prospective SCOTUS nominee prays daily for the continued good health and longevity of all Supreme Court Justices and plans to block DC calls the second the next Justice retires.
Mitch Mulhall is a husband, father and longtime valley resident. His column appears on the second Friday of each month.
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