The Daily Parker

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The New Jersey Plan on full display

If Brett Kavanaugh is confirmed, it will be only the second time in U.S. history that an Associate Justice nominated by a president who lost the popular vote will be confirmed by senators representing less than a majority of the country's population:

Let’s walk through it.

Obviously, Trump got almost 3 million fewer votes than Hillary Clinton in the 2016 election. Clinton got about 48 percent of the votes cast for president. Trump got about 46 percent.

Kavanaugh will join the Supreme Court despite opposition from senators representing more than half the country, despite more than half the country opposing his nomination, despite being viewed unfavorably by nearly half the country and thanks to a president who is viewed with disapproval by more than half the country and who lost the popular vote.

Kavanaugh is the second nominated and confirmed by a minority, opposed by the majority. Who was the other? Neil Gorsuch:

And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

But I implore you to take a moment to be angry about all this, too. This is a severe legitimacy crisis for the Supreme Court.

The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.

But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

Remember, the Republican Party doesn't care about institutions, or what's good for the country as a whole. They care about power. And they are not giving it up without a fight.

Fear of loss

Paul Krugman highlights how the politics of the Republican party are mainly about privileged white men feeling like they're losing their privilege:

There have been many studies of the forces driving Trump support, and in particular the rage that is so pervasive a feature of the MAGA movement. What Thursday’s hearing drove home, however, was that white male rage isn’t restricted to blue-collar guys in diners. It’s also present among people who’ve done very well in life’s lottery, whom you would normally consider very much part of the elite.

In other words, hatred can go along with high income, and all too often does.

At this point there’s overwhelming evidence against the “economic anxiety” hypothesis — the notion that people voted for Donald Trump because they had been hurt by globalization. In fact, people who were doing well financially were just as likely to support Trump as people who were doing badly.

I very much ran with the nerds during my own time at Yale, but I did encounter people like Kavanaugh — hard-partying sons of privilege who counted on their connections to insulate them from any consequences from their actions, up to and including abusive behavior toward women. And that kind of elite privilege still exists.

But it’s privilege under siege. An increasingly diverse society no longer accepts the God-given right of white males from the right families to run things, and a society with many empowered, educated women is finally rejecting the droit de seigneur once granted to powerful men.

And nothing makes a man accustomed to privilege angrier than the prospect of losing some of that privilege, especially if it comes with the suggestion that people like him are subject to the same rules as the rest of us.

This basic dynamic explains almost every revolution in history, including the American one in the 1770s. This time it's white men, but it could be any elite group who start losing power. The Post makes a similar point:

Jennifer Palmieri, a Democratic strategist and author of “Dear Madam President,” a book about reimagining women in leadership roles, said the nation’s fast-changing culture can be unsettling and indeed frightening to men in power.

“A lot of white men don’t know what it’s like to feel threatened, powerless and frustrated,” said Palmieri, former communications director for Clinton’s campaign. “As we go through the reckoning of this lopsided power balance, there’s going to be a lot more of this.”

The Republican Party has long identified with more traditional white males, such as former presidents Ronald Reagan and George W. Bush. But strategists say it is now turning more toward combative male candidates in the mold of Trump, with allegations of misconduct interpreted by many within the party not as liabilities but as unfair political attacks.

“We’re a party of angry, older white men at a time when our country is going through tremendous demographic change,” Republican strategist John Weaver said, predicting that the GOP would suffer the consequences in future elections.

So when white voters tell pollsters and reporters that they fear a tide of "those people" coming over the border, they feel afraid of losing their birthright. Not the traditions and culture, necessarily, but the parts of those things that put them on top because of the accident of birth.

Blaming the victim isn't new

It seems timely for me to dredge up this PSA I did for Hofstra Television in October 1991:

On later viewing, though, it seems to me like we still had trouble seeing that date rape was exponentially more common than random street rape. That said, I was pretty proud that HTV broadcast the video, from a script that we used in crisis hotline training.

Cast: Heather Maidat (Hofstra '94). Director: Sean Pearson (Hofstra '92).

It's deja vu all over again

The American Bar Association had concerns about Brett Kavanaugh 12 years ago:

Democrats for three years had been blocking President George W. Bush’s 2003 nomination of Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. They argued he was biased, as shown by his work as a lawyer for Bush’s presidential campaign, for an independent counsel’s investigation into President Bill Clinton and for other conservative causes.

Republicans kept pushing to make Kavanaugh a judge on the powerful appeals court, year after year. In his defense, they cited multiple reviews by the ABA’s judicial review committee that found him “well qualified” — the big attorney association’s highest possible endorsement, meaning Kavanaugh had outstanding legal abilities and outstanding judicial temperament.

But in May 2006, as Republicans hoped to finally push Kavanaugh’s nomination across the finish line, the ABA downgraded its endorsement.

The group’s judicial investigator had recently interviewed dozens of lawyers, judges and others who had worked with Kavanaugh, the ABA announced at the time, and some of them raised red flags about “his professional experience and the question of his freedom from bias and open-mindedness.”

But the GOP hasn't been in favor of unbiased judges since...well, let's see, they're really only in favor when Democrats hold the White House. Interesting.

I fear they're going to get uglier before they're out of power. It's human nature.

Lots of reactions to yesterday's confirmation hearing

Brett Kavanaugh's hearing yesterday dominated the news. Here are some reactions:

Then, today, the committee voted along party lines to advance Kavanaugh to the whole Senate; Jeff Flake (R-AZ) and Lisa Murkowski (R-AK) demanded the FBI investigate the allegations; and protesters confronted Flake in the Capitol.

With friends like these...

Republican David Brock, who worked with Judge Brett Kavanaugh on the Clinton impeachment, urges the Senate to vote "No" on Kavanaugh's nomination:

Twenty years ago, when I was a conservative movement stalwart, I got to know Brett Kavanaugh both professionally and personally.

A detailed analysis of Kavanaugh's own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to [Vince] Foster’s family and friends, or even common decency.

Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he's changed his stripes.

I can promise you that any pretense of simply being a fair arbiter of the constitutionality of any policy regardless of politics is simply a pretense. He made up his mind nearly a generation ago — and, if he's confirmed, he'll have nearly two generations to impose it upon the rest of us.

Meanwhile, it looks a lot like the Christine Blasey Ford held her own against what Josh Marshall calls "Grassley's Catastrophe."

We're 40 days from the mid-terms.

It's not "he said, she said"

Writing in Forbes, psychologist Todd Essig says it's perfectly plausible that Brett Kavanaugh has no recollection of what to Christine Blasey Ford was a life-changing event:

It is distinctly possible that his lack of memory is not because it never happened but because he really has no recollection of it taking place. He never encoded the event. Therefore, he cannot remember something he never noticed, even though it proved to be life-altering for someone else.

As Dr. Richard Friedman wrote this week, an attack usually triggers intense emotions and stress hormones that facilitate encoding memories. That is why “you can easily forget where you put your smartphone or what you had for dinner last night or last year. But you will almost never forget who raped you, whether it happened yesterday — or 36 years ago.”

Of course, this doesn’t let [Kavanaugh] off the hook for what he did or at all suggest he either has or doesn’t have the qualities one needs in a Supreme Court Justice. It’s just that he may not be lying about what he recalls. It also doesn’t excuse the self-serving way he transformed the absence of memory into the presence of certainty that something didn’t happen. A judge should know better than to rest his career on such a logical incongruity.

For another take on this phenomenon, check out Deborah Copaken's moving essay in The Atlantic, "My Rapist Apologized."

How the Great Gatsby explains Trump

Brilliant essay in The Atlantic by Rosa Inocencio Smith:

There’s an eerie symmetry between Donald Trump and The Great Gatsby’s Tom Buchanan, as if the villain of F. Scott Fitzgerald’s 1925 novel had been brought to life in a louder, gaudier guise for the 21st century. It’s not just their infamous carelessness, the smashing-up of things and creatures that propels Tom’s denouement and has seemed to many a Twitter user to be the animating force behind Trump’s policy and personnel decisions. The two men, real and fictional, mirror each other in superficial but telling ways. Tom moves like Trump, aggressive and restless, and talks like him, with ponderous pride. He picks personal fights in public, “as though … it would be a privilege to partake vicariously of [his] emotions.” Tom surprises his dinner guests with disjointed political speeches, warning insistently that “civilization’s going to pieces.” His patrician mannerisms are shot through with flashes of anxiety, “as if his complacency, more acute than of old, was not enough to him any more.” 

Tom—the Yale man, the football star, the spender of old money, the scion of what he calls the Nordic race—embodies the peak of social status in his century. Trump—the former Playboy-cover subject, the billionaire celebrity, the most powerful man in America—does the same for his. And their shared personality traits are the product of their shared relationship to power—the casual unreflective certainty that comes from inheritance, and enables its holders to wield its blunt force as both a weapon and a shield. Such power has its own logic; it responds not to social or moral rules, but to what it perceives as danger. It’s for these reasons that in 2018, The Great Gatsbyreads like a warning. For as much as it is a story about the American Dream, it is also a story about power under threat, and of how that power, lashing out, can render truth irrelevant.

History rhymes, and literature provides insights.

Damning with no praise at all

The two most prominent Republican women who write for left-leaning major newspapers are not happy with the Brett Kavanaugh saga. First, Michelle Goldberg says the current GOP elite are "pigs all the way down:"

Let’s start with Kavanaugh’s high school, Georgetown Prep, also the alma mater of Neil Gorsuch, Trump’s first Supreme Court pick. There’s now a wealth of reporting painting the private school as a bastion of heedless male entitlement. Kavanaugh’s high school friend Mark Judge — who Christine Blasey Ford, Kavanaugh’s first accuser, says was in the room when Kavanaugh allegedly assaulted her — has written extensively of his drunken teenage debauchery.

There’s no equivalent culture in which girls reap social capital for misbehaving. You rarely see women in politics or law who flaunt college reputations as party girls; the women who make it are expected to show steely self-control. In the rarefied social world that produces so many of our putative leaders, a young man who frequently gets blackout drunk, as Kavanaugh reportedly did, is a fun guy. A young woman who does so is a mess.

Watching all this unfold is radicalizing for reasons far beyond Republican mistreatment of Kavanaugh’s accusers. His story shows, in lurid microcosm, how a certain class of men guard and perpetuate their privileges. Women who struggle ceaselessly to be smart enough, attractive enough, ambitious enough and likable enough have been playing a rigged game. As they realize that, their incandescent fury is remaking our politics. We’ll know things have changed when palling around with sexual abusers carries more stigma than being abused does.

Over at the Post, Jennifer Rubin says, if Kavanaugh is a partisan hack, he should be questioned like one:

Judge Brett M. Kavanaugh shed any hint of judicial temperament on Monday night. He went right to the most partisan outlet, Fox News, which has been likened to “state TV.” He seemed a bit ill at ease in his role as victim during the softball interview. He teared up. He said he wouldn’t be chased out of the confirmation process. In doing so, he debased himself and the highest court.

By going to Fox News before appearing again before the Senate Judiciary Committee, he sank to the level of political partisan. As he claimed his growing list of accusers were . . . were what? — All loons? All partisans? — he made clear that he is not acting like an innocent man nor a judge. An innocent man and one of fine judicial temperament would demand an investigation to clear his name. An innocent man and a man steeped in due process and fair play would denounce reprehensible stunts such as trying to blame a completely innocent person using nothing but an old yearbook and Zillow. Such a man would not make a mawkish plea for sympathy, but rather, insist on a rigorous investigation of the facts.

Democrats should make clear that, in his hunger to sit on the Supreme Court, Kavanaugh has further politicized an already broken confirmation system and has done damage to the court. His indifference to transparency and fact-finding in favor of hardball political theatrics alone should be grounds for rejecting his nomination.

Because it turns out, making blatant partisanship part of the nominating process for a lifetime appointment makes the body itself blatantly partisan. We have the Republicans to thank for that, more than the Democrats, whose partisanship extended to bouncing Robert Bork because—wait for it—he was too partisan to sit on the Court.

The Republican Party can barely get through a morning without demonstrating their disdain for the voters who put them in office. And in their desperation to stay in power, they're destroying the system they're sworn to "protect and defend." Which may be part of their plan.

Thank you for de-linting my blog

This week, I got an email from the SEO coordinator at Alaska Airlines:

My name is Shawn with Alaska Airlines. I'm reaching out concerning a specific link on blog.braverman.org. As you may have heard, Alaska Airlines acquired Virgin America last year. We are in the process of updating all Virgin America links to go directly to our website, https://www.alaskaair.com.

We want to make sure your readers are being sent to the correct place!

We would really appreciate it if you could update the link and anchor text, Virgin America, on this page: http://blog.braverman.org/2009/09/default to:https://www.alaskaair.com and Alaska Airlines. 

Please let me know if you have any questions.

If you're not the appropriate person to contact about this, can you put me in contact with the right person?

(The actual post he meant me to change is here.)

See, Alaska took over Virgin America, and now they want to scrub the Internet of all references to the old airline. I politely told Shawn that, no, I was not about to change a 9-year-old blog post to send Virgin down the memory hole.

He replied that he understood, but could I just change the URL to point to Alaska Air at least?

No, Shawn. I'm not editing the post, full stop. It reflects the state of the world in 2009, and to me, it's a document that needs to remain unaltered.

I'm sure the SEO coordinator of an airline believes that it's a doubleplusgood thing to help people who may inadvertently discover a blog post from 2009 not get misdirected. But the whole thing really creeped me out. Alaska or one of its vendors had to go through every one of the over 6,500 posts I've written looking for references to Virgin America, and then Shawn had to field my response to his (no doubt automated) email request. That's a lot of effort to pretend Virgin America never existed.

Did I mention Virgin America Airlines? Just making sure.