Why God Is Laughing at Brett Kavanaugh

American politics is about power, not principle. If anyone should know this, it's Brett Kavanaugh.

September 17, 2018

God, it’s sometimes said, has an awesome sense of humor; if so, the Almighty must have been vastly entertained by the turns of fortune on display this past weekend in American politics.

Not amused, to be clear, by the sad story of what a middle-aged university professor recalls of an ugly night in high school with future Supreme Court nominee Brett Kavanaugh and how it echoed in her mind for years. An uproar over this allegation Sunday pivoted quickly from the first question—what’s true?—to an equally vexing one: What is even fair to be debating some 36 years after the fact?

It is on this point that the cosmos may be having a laugh not just at Kavanaugh’s expense but at many other people’s. After decades of competitive moralizing and situational ethics—in which every accuser in due course becomes the accused, and anyone riding a high horse can expect to be bucked off—even the concept of fairness in American politics seemingly is defunct.

Three decades of remorseless ideological and cultural combat—over Robert Bork, over Clarence Thomas and Anita Hill, over Bill Clinton and Newt Gingrich, over Bush v. Gore, and, at last and above all, over Donald Trump—have made the question virtually irrelevant.

Fairness is rooted in the idea of principles, precedent, proportionality. Few people in American life witnessed at closer range than Kavanaugh the modern reality that when things really matter—in the way that the balance of the Supreme Court matters—all these fine notions matter less than the cold, hard exercise of power.

So here was Kavaunagh—who spent his early thirties as a Ken Starr warrior pursuing Bill Clinton for the political and legal implications of his most intimate moral failings—now in his early fifties facing a political crisis over disturbingly vivid, passionately contested, decades-old allegations about Kavanaugh’s own possible moral failings.

Few prosecutors, it seems likely, would ever open an assault case—36 years later—on the basis of Christine Blasey Ford’s account of being pinned down on a bed by a drunken Kavanaugh, then 17, and being aggressively groped until a friend of his forcibly intervened.

But few prosecutors in the 1990s would have pursued an extensive criminal investigation over perjury into a middle-aged man’s lies about adultery if that person had not been President Clinton. In his zeal at the time, Kavanaugh, like Starr, may have worked himself into a belief that this was about sacred principles of law, but to many others—and ultimately to a clear majority of the country—it was obvious that the case was fundamentally about political power.

Kavanaugh’s fate, too, now depends on precisely the same thing: Do the allegations change the calculation for the perhaps half-a-dozen senators—including Republicans Susan Collins of Maine and Lisa Murkowski of Alaska—whose minds were not already made up by earlier political calculations?

With the benefit of hindsight, Kavanaugh later concluded presidents should be shielded from criminal investigations of the sort he helped wage against Clinton. At the time, however, he was filled with righteous indignation. “It is our job,” he wrote colleagues in Starr’s office in an email, “to make his pattern of revolting behavior clear—piece by painful piece.”

Can Kavanaugh and his supporters really be surprised that opponents of his nomination will feel similarly righteous in wanting to examine allegations against him piece by piece?

There was ample talk Sunday of the political equivalent of a statute of limitations, especially with so many women who know Kavanaugh in a variety of personal and political contexts speaking on his behalf. But the people who plead for such a grace period now generally did not raise their voices in the 1990s when Juanita Broaddrick accused Bill Clinton of rape 20 years before or when Trump invited her to attend a presidential debate as a prop for him in 2016—nearly 40 years after the alleged events in question and as way of deflecting allegations about his own sexist remarks and alleged affairs.

With a vote on his career-long dream of serving on the high court scheduled for just three days from now, Kavanaugh can be forgiven if he is not in an ironic frame of mind.

But others can note that the dynamic at work in his nomination—never mind arguments, never mind fairness, this is about votes—is one that has often served Kavanaugh and his fellow partisans well.

The most vivid example may be Bush v. Gore, when Kavanaugh as a GOP lawyer helped the Bush team prevail in the courts after losing the popular vote and after a bitter contest about his effort to count votes in Florida. In a 5-4 vote, the alleged strict constructionists on the Supreme Court decided in Bush’s favor even when the Constitution has no provisions for a contested election to be resolved by the court.

That was fundamentally a decision about power more than law, most Democrats reasonably believe—and certainly it was made without reference to what would feel fair to Gore—and it sent Kavanaugh to a senior job in George W. Bush’s White House and then on to the federal appeals court.

Merrick Garland could hardly be blamed for cursing the unfairness of being nominated for the Supreme Court but being denied a vote by Republicans waiting for the next presidential election. But presumably Neil Gorsuch—nominated by another president who took office under exotic circumstances after losing the popular vote—is not burdened by the unfairness of it all.

It’s a truth that Kavanaugh and his backers will reckon with anew as they try to hold on to what even before Sunday was a very precarious margin of support. What’s fair is in the eye of the beholder. But, even more, in the power-obsessed capital which he has happily inhabited his adult life, it is in the eye of whoever holds the votes.

John F. Harris is editor-in-chief of POLITICO and author of “The Survivor: Bill Clinton in the White House.“