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Brett Kavanaugh's confirmation exposed a deep cancer in the American body politic

The game is rigged



Long before we ever heard the name Christine Blasey Ford, there was good reason to be suspicious of Brett Kavanaugh.

Begin with the fact that a president under a special counsel's scrutiny for obstructing justice and possibly colluding with a foreign government to win an election – and one who was, just last week, exposed by the New York Times as a massive tax cheat – went out of his way to find the judge most deferential to executive power in perhaps the entire judiciary. Two decades ago, Kavanaugh ranked among the most zealous of Ken Starr's Clinton-haters, openly advocating during the Lewinsky investigation to publicly embarrass the president and force him to answer salacious questions about his sex life. Later, after he became George W. Bush's staff secretary, he suddenly decided that presidents should be more or less above the law.

Then, consider that, from the jump, Kavanaugh has been unashamedly mendacious. At his press-conference introduction, for example, he began by telling the American people (while kissing Donald Trump's ass), "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination" – a ludicrous assertion, considering that Trump literally picked Kavanaugh's name from a list handed to him by the right-wing Federalist Society. More important were his confirmation hearings, in which he lied under oath about his work for Bush and his role in stealing Democratic senators' documents on Bush's judicial nominees in the 2000s.

None of that was going to matter, of course. Senate Republicans forsook even the pretense of caring about anything but power the second Mitch McConnell refused to even grant Merrick Garland a hearing, and then again when McConnell changed the filibuster rules to enable Trump to put Neil Gorsuch on the court. In Kavanaugh, the right saw its chance to gain a generational foothold on the highest court, and they saw in him a raw partisan who would advance their agenda.

Then came Dr. Ford, and for a fleeting second, the conservative dream of reversing Roe and pushing gays back in the closet seemed imperiled. Ford's story was both plausible and credible. That she'd tried to stay out of the limelight spoke to the idea that she wasn't in this for fame; that she'd tried to alert senators about Kavanaugh's behavior before his nomination was announced indicated that she wasn't part of a partisan conspiracy. While her story is, 36 years later, impossible to prove beyond a reasonable doubt – a weird standard Republicans invented, considering that this was a job interview and not a criminal trial – her testimony was powerful, and her willingness to subject herself to death threats and harassment from Trump's minions admirable.

When other women stepped forward to accuse Kavanaugh of similar misconduct, and when details of his rich-kid frat-boy escapades hit the news, his goose looked cooked. But then again, this was never about evaluating the best person for this job; this was about power. And so we had old male senators tripping over themselves to complain that Ford's accusation was ruining Kavanaugh's life – another weird thing to say, considering that his consolation prize would be his current lifetime appointment to the D.C. Court of Appeals – or buying into the condescending conspiracy theory that, while Ford may have been sexually assaulted, and while she said she knew the identity of her assailant with "100 percent" certainty, she obviously must have been mistaken. Believe women, just not that much, right?

In the end, after Kavanaugh's belligerent denial to the Senate Judiciary Committee, followed by a White House-directed sham of an FBI investigation – which tried very hard to and succeeded in not uncovering any wrongdoing, though Kavanaugh quite obviously lied under oath about his drinking habits – Republicans (along with the gutless Sen. Joe Manchin) saw fit to confirm Kavanaugh to the court on the slimmest margin in history, 50-48. He'll now have a lifetime to make good on his whiny-ass threat to get even with his liberal interrogators.

If the Democrats take the House in November, there will probably be a push to impeach Kavanaugh for perjury, and there's plenty of evidence to warrant such an effort. But it will ultimately fail for the same reason Kavanaugh was confirmed in the first place: The game is rigged.

Ignore for a second gerrymandering, which is largely the reason Democrats will have to win this fall's popular vote by 7 or 8 points to gain a majority. Focus on a larger, growing problem: Trump, who won the presidency with 3 million fewer votes than his opponent, thanks to the anachronism of the Electoral College, has reshaped the judiciary because the bare majority in the Senate – 51 votes – represents just 44 percent of the public, another function of the Constitution's bias toward small (and, at present, white and rural) states.

Combined, the 10 states with the lowest populations have about the same number of people as Los Angeles County; yet they have 20 senators, and L.A. gets a partial say in two. Thanks to migration trends, the problem is getting worse: By 2040, two-thirds of the American people will be represented by just 30 percent of the Senate. Diverse, urban states will see their power diminished at the expense of rural, conservative ones.

So even if House Democrats can impeach Kavanaugh, and even if they produce ironclad evidence that he lied under oath, there's no way the Senate will remove him from office.

This bug in the system has been there from the beginning; hardly a product of political philosophy, it was enshrined in the Constitution for the same reason the three-fifths compromise was – to keep the slave states empowered and in the Union. And it will be almost impossible to eliminate. Amending the Constitution to require proportional representation in the Senate would require small states to give up their power, and that won't happen. A better solution, though still difficult, would be for Democrats, once in power, to grant statehood to Washington, D.C., and Puerto Rico, which have populations greater than two and about 20 states, respectively.

For now, though, we're stuck with the tyranny of this false majority – and the least popular nominee in modern history rammed through to a diminished, now decidedly partisan Supreme Court.


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