BY SUSAN ESTRICH
He will be confirmed, barring some totally unexpected development. He has been vetted by the investigators. He has been vetted by the media. The Republicans have the votes. The Democrats’ best argument is against the invocation of executive privilege; the documents should have been disclosed, but getting the country to rally around a process issue looks like more politics. And Judge Kavanaugh knows how to play politics better than you may think.
Getting through these hearings is what Judge Kavanaugh literally taught other appointees to do. Everything you hear has been scripted. Getting to the top of the president’s short list is another matter.
One of the most interesting parts of the show being played out in these hearings was Sen. Blumenthal, the very smart former attorney general of Connecticut, quizzing Judge Kavanaugh on how he went from not even being on Trump’s list of potential nominees during the campaign to being his first choice for his second slot.
What happened? Sen. Blumenthal asked.
The judge demurred, which is to say, he danced, not answered.
So the senator answered his own question.
Two things happened, and they changed the perception of Judge Kavanaugh from being a mainstream Republican to being the first choice of the right.
Think hot buttons. Think about what ideologues, as opposed to mainstream Republicans, care about, because they are in control, to the extent anyone is.
Abortion and Guns.
When I used to host talk radio, sometimes at odd hours, I knew I could fill every line in about 90 seconds by talking about either issue, because pushing hot buttons works. And not just abortion and guns in general. Judge Kavanaugh sent his message very clearly.
First, he wrote an article taking on “abortion on demand” – which he well knows does not exist anywhere in the United States. But that has long been the code word used by those who believe that abortion is murder precisely because it conjures up the image of women deciding to terminate a pregnancy in the third trimester [which they could only do if their unborn baby had died, or to save their lives] or because they wanted a boy more than a girl [which those who work in the field dismiss as fantasy].
Asked by the senator about his use of that code, the judge professed not to know that “abortion on demand” is any sort of code word. How dumb does he think we are? Or, rather, how dumb does he think he can play when he is a smart guy who did law and politics in the White House for George W. Bush?
It has been understood by everyone who has been in this thicket for even a short time that the way you “win” a poll on the pro-choice side is to ask about overruling Roe v. Wade. The way you get a majority to oppose abortion is to ask about “abortion on demand,” which is precisely why this is code. He didn’t have to answer the question about overruling Roe, and he won’t need to.
The right to an abortion has already been eviscerated in most of Red America by legislatures that are getting increasingly creative in the measures they use to make abortion more difficult [24-hour waiting periods, parental consent, required anti-choice counseling], more expensive [two visits instead of one, requiring a doctor with local hospital credentials] and, in many cases, effectively impossible [all of the above plus, of course, no funding]. And this Supreme Court will never hold any regulation to be excessive once Justice Kavanaugh takes his seat.
And if the article weren’t enough, Justice Kavanaugh winked again in dissenting from a decision to allow an immigrant teenager who had already gotten a court order, which itself takes time, to have an abortion. You read that right: He dissented. Asked why, he pointed out that any further delay would be reasonable. What is reasonable for a poor teenager who is not ready or able to support a child? What is reasonable is to allow her, with the court, to decide, not to subject her to further scrutiny by the government.
But where Judge Kavanaugh almost certainly hit the jackpot was when he dissented from a majority opinion that allowed the District of Columbia to ban assault weapons. His reason: So many assault weapons are already in use. And the Second Amendment, per Judge Kavanaugh, protects all weapons currently being widely used by criminals, including the machine guns favored by drug dealers and cop killers.
– Susan Estrich’s columns appear regularly in The Oklahoma Observer