Brett Kavanaugh (AP/Susan Walsh)

Kavanaugh's confirmation is a done deal

There have been many dramatic moments in Kavanaugh hearings, but the fix is in, he is all but confirmed


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Matthew Rozsa
September 7, 2018 2:58PM (UTC)

The consensus among commentators seems to be that, while there are a lot of problematic details regarding the confirmation hearings of Brett Kavanaugh for the United States Supreme Court, his ultimate triumph is virtually inevitable.

As Stephen Collinson of CNN wrote, the Democrats have been trying their hardest to trip up Kavanaugh as he attempts to land his lifetime judicial appointment, but so far their efforts have not yielded political fruit.

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One of the most vindictive and ill-tempered congressional hearings in memory appeared to do little to shake up the political realities that will likely see President Donald Trump's Supreme Court-reshaping nominee confirmed before the midterm elections.

The editorial board of the Los Angeles Times was even more blunt.

Kavanaugh’s confirmation is a foregone conclusion, not because of his qualifications or the commitments he made to respect precedent and safeguard judicial independence. We earnestly hope that he meant it when he assured Sen. Dianne Feinstein (D-Calif.) that he not only recognizes that Roe vs. Wade “has been reaffirmed many times over the past 45 years,” but also that he is aware of the real-world implications of overruling that decision. (“I don’t live in a bubble,” he said.) Yet these and other assurances Kavanaugh offered aren’t the reason he is headed to the Supreme Court.

He will be filling the seat vacated by retired Justice Anthony Kennedy because he is the conservative nominee of a Republican president (albeit an unorthodox one) and the Senate is controlled by Republicans who no longer need to worry about the wishes of the minority party.

READ MORE: Another American happy warrior laid to rest: John McCain's legacy of gung-ho militarism

Michelle Goldberg of The New York Times denounced the process that is leading to Kavanaugh's eventual confirmation as a corrupt one, identifying how Republicans basically know that Kavanaugh will protect Trump from responsibility for any potential crimes he committed but isn't going to stop him regardless.

There are plenty of reasons Kavanaugh shouldn’t be confirmed. Leahy made a credible case that the judge once lied under oath about his knowledge of a scandal involving documents stolen from Senate Democrats, which happened when Kavanaugh was in the Bush administration. If Senator Susan Collins, Republican of Maine, were actually committed to preserving Roe v. Wade, she would raise the alarm about a leaked email in which Kavanaugh questioned the idea that the 1973 abortion decision is “settled law.” But realistically, barring a last-minute outbreak of conscience from two Senate Republicans, Kavanaugh will soon sit on the Supreme Court.

He will owe his elevation to Trump, who is in effect an unindicted co-conspirator in a campaign finance crime that helped him achieve his minority victory. There’s every reason to believe that Kavanaugh will shield the president from accountability or restraints on his power. Yet even Republicans who think Trump is a menace are desperate to confirm his judicial pick.

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What we have here, in miniature, is the corrupt bargain Washington Republicans have made with a president many of them privately despise. They know Trump is unfit, but he gives them tax cuts and right-wing judges. Those tax cuts and right-wing judges, in turn, strengthen the president’s hand, buying him gratitude from rich donors and potential legal cover. Republicans who participate in this cycle seem convinced that the situation is, and will remain, under their control.

The bottom line is quite simply that, now that Republicans have made it impossible for Democrats to filibuster Supreme Court nominees, they can shove Kavanaugh through the Senate regardless of any legitimate reservations about his character and agenda. That is a troubling precedent for this country, and commentators seem to know it.

Famed Harvard law professor Alan Dershowitz

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Matthew Rozsa

Matthew Rozsa is a breaking news writer for Salon. He holds an MA in History from Rutgers University-Newark and is ABD in his PhD program in History at Lehigh University. His work has appeared in Mic, Quartz and MSNBC.

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