Brett Kavanaugh

Until Christine Blasey Ford stepped forward with her story of near-rape at the hands of a couple of drunken preppies, the Brett Kavanaugh confirmation saga seemed to be shaping up as a classic Washington farce in which Democrats go through the motions of opposing a rightwing Supreme Court pick while doing as little as possible to actually stop it.

Now that the Ford saga has busted it wide open, it’s still a farce, but a rollicking high-octane farce that is impossible to resist whether we like it or not.

Given Kavanaugh’s strongly-worded denial, it remains a question of her word against his.  But all sides are now piling on.  Mark Judge, a conservative writer and journalist who took part in the alleged assault, did his old pal no favor by declaring, “It’s just absolutely nuts.  I never saw Brett act that way.”  He added in an email a day later: “I have no recollection of any of the events described in today’s Post article or attributed to her letter.”  The trouble is that Judge is the author of a 1997 memoir entitled, “Wasted: Tales of a Gen-X Drunk,” in which he brags about how many times in high school he wound up unconscious on the floor.  Once “I had the first beer,” he says, “I found it impossible to stop until I was completely annihilated.”  The fact that he has no recollection of an assault is meaningless since there’s much about his school days that he doesn’t recall.

There’s also the fact that Judge seems to be a rightwing creep who thinks that “women should be struck regularly, like gongs” (as he put it in his high-school yearbook, quoting Noel Coward); who writes that Barack Obama is a wimp who lives in “abject terror” of his wife; who equivocates about the morality of rape, and who is given to wayward thoughts about black people and gays.  (Check out Shane Ryan’s article in Paste Magazine for all the sordid details.)  The fact that Kavanaugh would hang out with someone like this does not bode well for the GOP.  The other side has meanwhile trumpeted the news that students describe Ford, a research psychologist at Palo Alto University, in ratemyprofessors.com as scary and unprofessional – until, that is, it turned out the comments were about a different professor at a different university.  Now conservatives have taken it back while desperately searching for other ways to poke holes in her story.

Exciting, isn’t it?  Can’t you feel the adrenaline rushing through your veins the way it did back in the days of Anita Hill?  For the next few weeks, it looks like we’ll be condemned to spend our free time arguing about sexual violence and how to combat it, about the relationship between teenage misdeeds and adult behavior, and so on.  Resistance will be futile.  We’ll be drawn in whether we like it or not.

But as important as such topics are, consider what we won’t be discussing, e.g. how an unelected Supreme Court has come to loom so large in American political life or why such a powerful body should be exempt from democratic oversight.  Other things we won’t talk about include:

• The fact that Kavanaugh, currently in his early fifties, could remain on the bench well into the 2050s or even longer thanks to medical advances. Society will be transformed, yet Kavanaugh will go on mumbling about the eternal wisdom of the Founders as if everything had remained the same.
• The question of whether judicial interpretation can’t help but weaken as the decades wear on.  The more the Framers retreat into a mythic past, the more irrelevant they become in terms of modern society.  Rather than asking what the Constitution means, the question Americans should be asking themselves is whether such an exhausted tradition still retains any meaning at all.
• The issue, finally, of whether excluding the masses from decision making strengthens democracy or undermines it.  If Americans are really concerned about the decline of democracy, the question is to consider is whether the answer is not to narrow it,  but to broaden it all the more.

But not only will such topics go undiscussed, they’ll wind up ever more sidelined as more “pressing” matters intrude.  It’s a fascinating example of how the political structure steers the “national conversation” away from the political and towards the sexual and personal by making it easier to talk about one than the other.

Take Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee.  In addition to bringing up Ford, she could conceivably raise questions about the wisdom of lifetime judicial appointments.  If representatives only serve two years and senators six, why on earth should Supreme Court justices serve for decades on end?  But if she complains that the Supreme Court is undemocratic, then someone will complain that a monstrously unrepresentative Senate is undemocratic as well, and her authority will vanish.  She doesn’t dare mention the absurdity of giving California the same clout as Wyoming even though its population is nearly seventy times greater because that would suggest that the Constitution is also absurd, words she cannot begin to utter about a document that, in accordance with Article VI, she has sworn to obey and uphold.  She can’t call for reform of the principle of equal state representation because she knows that Article V makes it impossible.

So she finds it more profitable to keep quiet.  One could accuse her of participating in a great conspiracy to bury such questions forever and ever except that, as she sees it, she agreed to play by certain rules when she entered politics, and thus can’t imagine changing them at this late date without going back on her word.

Similarly, she can’t encourage debate about the difficulties of constitutional interpretation for fear of opening a Pandora’s box that could lead to the undoing of decisions like Roe v. Wade.  Her only recourse, she figures, is to preserve America’s pre-modern political structure in the hope that Democrats will one day claw their way back on top and make the ancient machinery do their bidding instead.

The important questions are thus put off while everyone talks about sex instead.  “I am stunned that this is happening again,” Barbara Boxer, a former Democratic senator from California and a veteran of the Anita Hill wars, told the Times.  “But it is not surprising because our culture has not completely dealt with inequality between men and women.”

Yes, but what about the inequality between Californians and Wyoming residents?  This is something that American culture has unable to deal with at all.

Obama at Urbana-Champaign

Barack Obama’s September 7 speech at Urbana-Champaign has gotten a lot of attention due to its anti-Trump rhetoric.   But one comment has gone largely ignored:

And, by the way, the claim that everything will turn out OK because there are people inside the White House who secretly aren’t following the president’s orders, that is not a check.  I’m being serious here.  That’s not how our democracy’s supposed to work.  These people aren’t elected.  They’re not accountable.  They’re not doing us a service by actively promoting ninety percent of the crazy stuff that’s coming out of this White House and then saying, don’t worry, we’re preventing the other ten percent.  That’s not how things are supposed to work.  This is not normal.  These are extraordinary times.  And they’re dangerous times.

These people aren’t elected.  They’re not accountable.  They’re not doing us a service….  What is this but an attack on the New York Times for publishing an anonymous op-ed by “a senior official in the Trump administration” claiming that Trump appointees are working behind the scenes to block his “more misguided impulses”?

“Although he was elected as a Republican,” the op-ed declares, “the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people.”  Instead of confronting Russia, it complains that the president has balked at expelling alleged Russian spies and has opposed sanctions designed to counter to Moscow’s “malign behavior.”  But never fear, “his national security team knew better – such actions had to be taken, to hold Moscow accountable.”  So top officials have rammed them through regardless.  “This isn’t the work of the so-called deep state,” the piece went on. “It’s the work of the steady state.”

This was all quite extraordinary.  Last year, the Times said the notion of a deep state was a lie that Trump made up “to deflect perceived criticism by attacking the legitimacy of the critic.” Now it turns out that a deep-seated anti-administration conspiracy does exist and the Times couldn’t be happier.  In a follow-up editorial, the paper accused Trump of acting unconstitutionally by daring to get upset.  “Finger-pointing, name-calling, wild accusations, cries of treason – it was an unsettling display, not simply of Mr. Trump’s emotional fragility and poor impulse control, but also of his failure to understand the nature of the office he holds, the government he leads and the democracy he has sworn to serve.”

But what’s wrong with letting loose at those trying to do his administration in?  Wouldn’t Obama do the same if self-appointed guardians of the status quo blocked his most important initiatives?  How about Bernie Sanders — wouldn’t he do the same?  Steve Bannon may have exaggerated when he accused the Times of encouraging a coup d’état, but only slightly.  Tanks may not be ringing the White House.  But what the anonymous op-ed describes is essentially a slow-motion putsch in which the permanent national-security apparatus jams up the machinery from within.  These are indeed dangerous times, just as Obama says.

What’s ironic, of course, is that while no one elected such people, it’s not clear who elected Donald Trump.  Certainly, the people didn’t; rather, he slipped into office by virtue of an obscure body known as the Electoral College, the American equivalent of the Vatican’s College of Cardinals, which overrode the popular vote for the second time in less than two decades.  This is a frankly undemocratic body that triples the clout of depopulated rural states like Wyoming and the Dakotas in presidential elections at the expense of the teeming giants like California and New York.  The Times could have called for repeal on the grounds that it violates the principle of one person-one vote.  But it can’t for the simple reason that it’s impossible.  Thanks to the three-fourths provision in Article V – which says that any amendment must be approved not only by two-thirds of each house of Congress but three-fourths of the states – thirteen states representing as little as 4.4 percent of the population can veto any constitutional reform in perpetuity.  Since rural states can be counted on to use every constitutional trick in the book to protect their special advantage, reform is out of the question from the start.

Conceivably, the Times could admit that America’s decrepit constitutional structure is beyond repair.  But since this would pitch it into terra incognita, it has opted instead for a kind of double denial.  On one hand, it ignores the problem posed by the Electoral College, thereby misleading its readers as to the true nature of America’s constitutional crisis.  On the other, it has placed the blame solely on Trump, who is supposedly wrecking American democracy single-handedly.  It’s not the fault of the Constitution, you see, but of a single aberrant individual who somehow snuck into the Oval Office and is now laying the country waste.

It’s convenient since the effect is to get the Constitution off the hook along with establishment pillars like the Times itself.  The upshot is a nonstop campaign to demonize Trump as the be-all and end-all of America’s sorrows plus an even stranger attempt to portray Vladimir Putin, the man who supposedly put him in office, as an all-powerful puppeteer straight out of the Protocols of the Elders of Zion.  It’s an interesting example of how a bourgeois institution, unable to deal constructively with the problems pressing down upon, responds by retreating ever more deeply into the occult.

In constitutional terms, the effect is to intensify the crisis by promoting plots and conspiracies at home while encouraging military confrontation with a nuclear power abroad.  Republicans and Democrats are both constitutional in the sense that both are products of America’s hyper-attenuated pre-modern structure.  Hence, as this column has repeatedly argued, both are equally complicit in its collapse.