It no longer startles anyone in America that the current president treats nominating a Supreme Court justice like a rose ceremony on The Bachelor. This isn’t, by the way, a subtle comparison: The White House tweeted a preposterous “ad” intended to goose the who-will-he-choose anticipation, and Donald Trump affiliates—like his son—worked hard to drum up reality TV–style suspense and drama with the usual bilge:
Yet after manufacturing all that buildup, Trump delivered a comparatively unexceptional event Monday night. He gave a short, relatively standard speech without any noticeable trademark ad-libs. (At his introduction of Neil Gorsuch, he hadn’t been able to help but give a showman’s wink: “So was that a surprise? Was it?”) His nominee, Brett Kavanaugh, gave a talk notable both for its hyperbolic servility toward Trump himself and the conciliatory tone it sought to strike for his would-be critics. As if to pacify women concerned—rightly—that he’d roll back their rights, Kavanaugh talked at length about his mother’s career path, his daughters’ sports affiliations, and the fact that a majority of his clerks have been women.
Why the bait and switch? Why promise a circuslike spectacle when the intention was always to deliver a fairly staid (for him) performance?
We know that Trump’s feigned indecision was just that—feigned. Per Maggie Haberman, he was still “polling” people about Thomas Hardiman vs. Kavanaugh on Monday morning even though he’d informed Kavanaugh of his selection the night before. And it’s easy to see why the pick was, to him, an obvious choice: He is his own top priority, and what he needs is a Supreme Court that can make true his claim that he could theoretically “pardon himself” of federal crimes. In the wake of Justice Anthony Kennedy’s announced retirement I wrote that Trump now had the power to nominate someone who could “rubber-stamp him into invulnerability.”
In Kavanaugh, Trump gets exactly this. The nominee looks good on paper—he’s Ivy-educated, Federalist Society–approved, and has the sorts of credentials serious thinkers like to solemnly enumerate. More importantly, though, Kavanaugh isn’t just a booster for presidential power, he’s someone who—having once laid out the grounds for impeaching President Bill Clinton—has since (in a move his advocates will no doubt cite as evidence of his broad-mindedness) changed his mind about how presidents should deal with being investigated. In brief, he doesn’t believe they should have to: “[T]he President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions,” he added. The “indictment and trial of a sitting President” would “cripple the federal government.”
Imagine Trump’s feelings when he heard that. Trump used the phrase equal justice twice in his speech, but what he really wants is exceptional justice. And Kavanaugh is willing to give it.
But installing a judge who will quietly immunize you from any legal consequences for wrongdoing requires finesse. It’s a challenge even for a showman of Trump’s caliber. A maneuver like this must look quite, quite normal in order to successfully mask his real rationale. It can be easy to forget, especially on the heels of a bile-filed rally in Montana, that Trump can “code switch” when he has reason to, and he had reason to do so Monday, when what he needed was to make filling a Supreme Court seat look like the act of a statesman rather than a robber baron.
Bullies and abusers know when it’s politic to provisionally soothe. Trump—who has routinely shunned and insulted Americans outside his narrow base—tried hard Monday to sound inclusive. Sure, he had to force the words a little to “thank the senators on both sides of the aisle” who had advised him. But the words on his teleprompter struck an atypically lofty tone. Needing to articulate some kind of judicial philosophy, he borrowed one from Ronald Reagan—who, he claimed, understood that “the best defense of our liberty and a judicial branch immune from political prejudice.”
If you follow Trump, you know that pronouncements like these—and his claim that “I do not ask about a nominee’s personal opinions”—are meaningful only to the extent that they betray his real thinking and behavior, both of which drift in the opposite direction: Trump has publicly attacked judges, and his demands for political prejudice from those who owe their jobs to him has been well-documented.
But because Trump is a reality-TV savant, it’s useful to think a little more flexibly about what the reality-TV frame does—how it primes viewers’ expectations and how Trump has used reality TV in the past. Lucas Mann has argued that Trump is actually a pretty atypical reality star. In his Apprentice years, Mann writes, Trump didn’t offer what most reality-TV stars do: accessibility, humiliation, personal embarrassment, vulnerability. Instead, “the president was really just plugged into one of the most common archetypes of its early boom: the judge.”
That’s exactly right. Trump’s reality-TV persona is, oddly enough, more respectable than he is. He only appeared on The Apprentice in a capacity that positioned him as powerful and spared him embarrassment. The show edited his footage to present him as a stern and elevated arbiter of merit. We know that Trump doesn’t much resemble that persona—he’s easily manipulated, he’s incapable of firing people face to face, he values loyalty over credentials—but the image he cultivated was persuasive enough. In his less-scripted reality-TV presidency, he has occasionally borrowed that persona when he really needs to appear respectable. And so Monday night he orchestrated his very delicate nomination of a Supreme Court justice—one of the most powerful judges on Earth—in a way that effectively positions him as the ultimate judge. It’s a decent misdirection: He needed to make it crystal clear that he chose Kavanaugh for his qualifications, not his views on presidential authority. To do so, he invited viewers to see the version of him that values merit above all else—thereby obscuring his other possible motives.
That Kavanaugh went out of his way to play his part in catering to Trump’s ego was painfully clear: “I have witnessed firsthand your appreciation for the vital role of the American judiciary,” Kavanaugh began, with a straight face. (Here is a partial list of Trump’s attacks on the judiciary.) To a series of servile superlatives, he added a line of personal gratitude: “Mr. President, I am grateful to you, and I’m humbled by your confidence in me.” (Gorsuch’s, in comparison, was a less personalized “You’ve entrusted me with a most solemn assignment.”)
It was a peculiar little show: The requisite lip service to neutrality and independence was repeatedly offset, on both sides, by extravagant professions of praise. “There is no one in America more qualified for this position and no one more deserving,” Trump said, absurdly. “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination,” Kavanaugh lied.
But this is subtle stuff, and it’s harder to see ever since Trump turned the presidency, and its attendant responsibilities, into a circus. This strategy has advantages: He can advertise drama and strategically underdeliver when the stakes (for him) are so high that a veneer of normalcy becomes attractive. Never mind Kavanaugh’s belief in unbounded presidential authority and Trump’s obvious need for exactly this. The point of stoking Nielsen ratings and delivering Kavanaugh was to get as many people to witness what he badly wanted them to: a normal conservative with respectable credentials and a pleasant family presented without vitriol or demagoguery. By TV standards, the nominee was positively and reassuringly boring. Rather than scan as what he clearly is—the candidate most likely to cement a president’s legal state of exception—Kavanaugh appeared, to an addled public desperate for stability, to promise something like politics as usual. He seemed, in a word, confirmable.
One more thing
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