On the 150th anniversary of the ratification of the 14th Amendment to the Constitution, President* Donald Trump nominated Judge Brett Kavanaugh, Ken Starr’s old ejaculation gumshoe, to a lifetime position on the Supreme Court of the United States. This is further proof that the politics of the 1990s should be burned from the memory of humankind with great gobbets of angelic fire.
In his magisterial book on the Starr investigation of President Bill Clinton, author Ken Gormley writes that, having originally been tasked to work on the indecent extended snipe-hunt concerning the suicide of White House counsel Vincent Foster, Kavanaugh was then enlisted in the ensuing Great Penis Hunt, wherein, as Gormley writes, he helped frame the most salacious questions to be posed to President Clinton.
Interestingly, as the principal author of Starr’s eventual soft-core classic, Kavanaugh reportedly went to Starr with “moral” objections to the most prurient passages, many of which, of course, were the result of lines of inquiries that Kavanaugh himself had suggested. This puts into an interesting light the now-famous article Kavanaugh wrote for the University of Minnesota Law Review in which Brett Kavanaugh, onetime gumshoe for a special prosecutor, argued that presidents should not be pestered by criminal inquiries while in office.
(In his defense, it should be noted that Kavanaugh primarily argued that this was a question the Congress should address. This, of course, implies that, until Congress does so, it’s still open season.)
And now he may well be asked to judge the constitutional validity of whatever Special Counsel Robert Mueller produces in regard to the man who appointed Kavanaugh. It seems fair to argue that Judge Kavanaugh likes to press every political advantage to its ultimate end and then, when the wind shifts, deplore the consequences of that which he was previously a part. From that law review article:
This was a pretty easy call … in 2009.
I’m not entirely sure, but it seems to me that, having been part of squeezing the Great Penis Hunt for every ounce of its political advantage, Kavanaugh here is arguing that the statute that had empowered him to do so led in some vague way to the attacks of September 11, 2001. (Kavanaugh was working in the White House that day, and he mentioned in his remarks Monday night how he and his future wife were scrambled out of the building when it was believed that another plane was inbound.) Make no mistake. Before he is anything else, Judge Brett Kavanaugh is a political animal. Senator Richard Durbin, Democrat of Illinois, once referred to him as the “Forrest Gump of Republican politics.” Kavanaugh has played a major part in every major Republican politico-legal event of the past quarter-century.
In addition to his deep involvement in the Starr investigation, Kavanaugh also worked on the legal team that fought the Florida recount in 2000. This led to a job in the George W. Bush White House and, ultimately, to his nomination to the bench, which the Democrats in the Senate managed to hold in abeyance for almost six years, citing Kavanaugh’s political activities and his lack of judicial experience.
Senator Richard Durbin, Democrat of Illinois, once referred to him as the “Forrest Gump of Republican politics.”
Since becoming a judge, Kavanaugh has been a dependable ally of the corporate class; he has delivered opinions in which he argued that the Consumer Finance Protection Bureau is unconstitutional and also that the president* can simply declare a law like the Affordable Care Act unconstitutional and then refuse to carry it out. It’s been a long time since we had a Supreme Court nominee with this lengthy a paper trail behind him. It’s a target-rich environment. This possibly could make opposing his nomination easier. His two-step on special prosecutors should take up the better part of a day’s worth of hearings since it reeks of pure political expedience. And, god knows, he shouldn’t be allowed to use what he wrote in 2009 as an alibi for what he would do if Mueller’s case came before him. Unless Kavanaugh agrees to recuse himself from any such case, nobody should vote for him.
In any event, this was the damndest way to celebrate the 150th birthday of the 14th Amendment, the hard-won absolution for the original sins of the original Founders and the dagger to the philosophical heart of states’ rights conservatism. In Democracy Reborn, his history of the ratification of the 14th, author (and friend of the shebeen) Garrett Epps writes about the lost promise of the original Reconstruction, and how that abandoned hope poisons our law and politics even today.
And for its birthday, the 14th got the nomination of Brett Kavanaugh, political animal, former gumshoe for Ken Starr, and now, possible occupant of a seat on the Supreme Court for the next 20 or 30 years. Maybe they just should have bought it a tie.