Déjà vu all over again

Some people have drawn comparisons between the Kavanaugh confirmation hearings and those of Clarence Thomas in 1991. Those comparisons tend to focus on the nature of the accusations and the conduct of the Senate Judiciary Committee, but there is another important correlation that has been largely missed: like Kavanaugh, Thomas was not a particularly impressive appointee.

Thomas was not a great scholar. Other than the Anita Hill's testimony, Thomas is best known for hardly ever asking questions or dissenting in interesting ways, but just being a solid but not distinctive conservative vote.

(Scalia often sounded nonsensical, but he made much more of an impression.)

Thomas's lack of contribution was to be expected. His service previous to the appointment was not really distinguished. The Court of Appeals for the DC Circuit is not an unreasonable place to look for candidates (his predecessor there was Robert Bork, who was also nominated, though not appointed), but Thomas had served there less than two years.

That could again be a situation where you wonder why this person, and then why not just let him go once the harassment allegations arose, but Thomas presented a crucial combination of traits for the Republicans of the time: in addition to being reliably conservative, he was Black.

That sounds cynical (especially given Thomas's antipathy to Affirmative Action), but there were considerations. The appointment was due to the retirement of Justice Thurgood Marshall, the first Black man on the Supreme Court. Returning the court to its prior all-white state would have been viewed as a step backward. As important as white supremacy was to the Republican party even then, they were still going for quiet dog whistles and plausible deniability of their racism at the time. Bush really needed a Black man.

Bush also wanted that reliable conservative vote. While there would have been good Black candidates who leaned liberal, that would not have moved the court in the manner that Bush wanted and needed. Most intelligent and legally experienced Black people were well aware of what the dog whistles meant and were not okay with them; finding someone who was meant searching through the dregs. Thomas didn't have much competition.

With Kennedy being white and pretty conservative (yes, sometimes a swing vote), that should leave a pretty big pool open for potential replacements, where they could have done much better than Kavanaugh. However, there is something that Trump wants that Kavanaugh seems best able to provide.

Gamble vs United States is pending. It could be heard this month. It has the potential to decide that a federal pardon would make state prosecution fall under double jeopardy.

https://www.theatlantic.com/politics/archive/2018/09/trump-pardon-orrin-hatch-supreme-court/571285/

This would be a real gift to a corrupt president who has expressed a lot of interest in his ability to pardon (including speculating on pardoning himself). It would undo a lot of work done by Mueller on investigating Russia's interference and corruption in the 2016 election. Many of the crimes being established would still be eligible for state prosecution even in the event of a federal pardon under current law. So far.

In other words, if you like this administration and want to be able to see them continue unfettered, this may seem like a good deal. It is still not great for the Constitution, or for the rule of law meaning anything. Because of that, there are a lot of potential distinguished candidates for the Supreme Court who would not look favorably on such a resolution.

Kavanaugh seems like the best bet for the ruling Trump wants. That says a lot about him. Once again, to find the policy you want (in the body that is supposed to be non-partisan) involves rummaging around in the dregs.

Sure, it is hard not to see certain similarities between Trump and Kavanaugh, where you would expect a sympathy to exist between them. They have a similar tenuous hold on their composure. They claim credit for things that were given to them, though Kavanaugh tends credit hard work more, as opposed to Trump's superior genes and genius. (Like, I can see where Kavanaugh might not believe that his prep school attendance and his grandfather affected his getting into Yale, but does he really believe he was first in his class?) Neither man does anything with his personal conduct to contradict the many accusations of sexual abuse against them.

Sure, they could get along famously, but that's not what this is about. Trump and the people around him think Kavanaugh will be useful. They're not even wrong, but it's a problem if you want to hold on to the republic.

We are not doing a good job of keeping it.