Jurisprudence

The Grotesque Decency of Brett Kavanaugh’s Confirmation Hearings

Normalcy and civility are a threat to the rule of law.

Sen. Jeff Flake listens on Tuesday during day one of Brett Kavanaugh's confirmation hearing to be on the U.S. Supreme Court.
Sen. Jeff Flake listens on Tuesday during day one of Brett Kavanaugh’s confirmation hearing to be on the U.S. Supreme Court.
Brendan Smialowski/AFP/Getty Images

If we learned anything at all from John McCain’s funeral over the weekend it’s this: The more buffeted we are by the hourly insanity that emanates from the Trump White House, the more likely we are to get bleary-eyed drunk on episodes of public sobriety, dignity, and seriousness. As Michelle Goldberg aptly noted, “For many who detest Donald Trump, the spectacle of the country’s former leaders championing embattled American principles—principles once shared by even the bitterest political enemies—was fiercely moving.” Moving, yes, but at what cost?

The more corruption, incompetence, and recklessness we witness spewing out of the White House, the more inclined we are to cling tightly to the blanket of institutional integrity, normalcy, and civility. It’s not just that it’s nuts out there. It’s almost as if the nuttier it gets, the more we need to pretend that wherever it is we’re sitting at the moment is a safe place in which the norms of dignity, respect, and goodwill are still in force. And if John McCain’s funeral was a symbol of that, so too is all the talk of “decorum” and “civility” in the U.S. Senate.

And so, Republicans spent the first day of Brett Kavanaugh’s confirmation hearings telling us that nothing that’s happening in here has anything to do with the fact that Donald Trump is the president. None of the concern around this Supreme Court seat has anything to do with the fact that the president himself is under investigation for corruption and campaign finance violations, or that his personal lawyer swore under oath that Trump instructed him to commit crimes, or that a foreign power is currently interfering with our election systems. All of that is about a different thing. This hearing is about something stable and immutable and good. And anyone who implies that anything is abnormal is a hysteric or an opportunist or an attention-seeker.

Jeff Flake and Ben Sasse can go so far as to express mild concern about Trump’s assaults on the rule of law and his own attorney general because none of that has anything to do with Brett Kavanaugh. And Lindsey Graham can splutter about Hillary Clinton because that also has nothing to do with Kavanaugh. And Chuck Grassley can snarl that this is akin to attacking the president because it has nothing whatsoever to do with the president.

If you followed Tuesday’s events on a split screen, you’d know that in addition to issuing threats to his own attorney general and making claims that Republicans running for office deserve different legal treatment than Democrats, Trump was also the subject of jaw-dropping leaks in Bob Woodward’s new book, leaks suggesting his own aides must take documents off his desk in order to keep the United States safe from his rampant incompetence. But inside the cocoon of the Senate Judiciary Committee, none of that matters at all. Moreover, for legal luminaries like Ted Cruz, this hearing is an extraordinary opportunity to celebrate the greatness of Trump’s nominees to the Supreme Court and the lower federal courts. This is still a safe space, of civility and decorum, and the Democrats who squawk about documents being withheld have descended into “mob rule” and incivility.

The White House (the White House!) was tweeting indignantly about interruptions. By the end of the day Trump himself was tweeting that all Senate Democrats were “mean, angry, and despicable.” But even with the president forcing himself into the Senate’s aperture yet again, by no means should anyone who works there take any steps to rein him in. That would be weird. And while most of the senators had the good graces on Tuesday to pretend that Trump was not really the president, some evinced a kind of nagging low-level worry that someone somewhere should really address the problem of a chief executive who doesn’t believe in law or courts or justice. But who? Who could possibly do it?

Flake described “concern” about Donald Trump’s attacks on the rule of law. And Sasse deplored the do-nothing Congress. And Chuck Grassley (yes, this Chuck Grassley) bemoaned the fact that Senate Democrats were taking advantage of his “decency and integrity.” But everyone on the Republican side of the aisle felt confident that it was Democrats who were breaking the Senate on Tuesday.

On the Democratic side, Dick Durbin decried the fact that a Republican lawyer was vetting all of the Kavanaugh documents, and Amy Klobuchar expressed the sentiment that nothing about this hearing was regular. “This is not normal,” she said. “You have a nominee with excellent credentials, with his family behind him. You have the cameras there. You have the senators questioning. But this isn’t normal.” Mazie Hirono made the same point: “These are not normal times.”

Indeed, for a brief time on Tuesday morning as the Democrats demanded postponement and adjournment, it appeared they might walk out of the chamber altogether. But ultimately, the need for regularity and normalcy overmastered even them, and so while their opening statements grew longer and more irate, the decision to stick around and litigate this thing on the merits proved too tempting. It was left to the protesters, one after another in unprecedented numbers and with unprecedented ferocity, to voice their disgust and dismay. The more furious the calls for “decorum” and “rules” and “politeness,” the more enraged the protesters became. The opposite of civility isn’t always civil disagreement.

In the furious national quest for decency and normalcy, the day ended as a parody of itself—with Kavanaugh feted by a “liberal feminist” lawyer for his legal greatness that transcends all politics and ideology, and the judge himself offering his girls’ basketball coaching as an argument about human decency in a cruel and frightening world.

If the McCain funeral proved anything, it’s that we take so much visceral succor in public performances of bipartisanship and decency that we can blinker ourselves to genuine injustice, injustice we don’t see because it happens outside our scope of vision. We need balanced, functioning institutions so desperately that we gorge ourselves on performances of friendship and family and civility.

We must be extra cautious, now more than ever, about institutions that substitute talk of norms and civility for actual justice. Senate Republicans are rushing the Kavanaugh hearing, and blocking access to his record, precisely because they would rather prey on the national need for normalcy and dignity than do anything to reaffirm the rule of law as it applies to this presidency. Yet again the crumbling of democratic safeguards is someone else’s problem. Sometimes calls for institutional decency and civility mask institutional cowardice and opportunism. The first day of Kavanaugh’s confirmation hearings was one of those times.