Earl Ofari Hutchinson
Author of The Kavanaugh Court (Amazon) Free Amazon Read Wednesday September 19
It’s de ja vu time with SCOTUS nominee Brett Kavanaugh. In 1991 it was Anita Hill. In 2018, it is Christine Blasey Ford. But the outcome will be the same. Here’s the brief recap. Then President George H. W. Bush nominates Clarence Thomas to the SCOTUS. Packs of civil rights groups and liberal Democrats opposed Thomas. However, there was no reason to think that their opposition would be enough to derail his nomination.
With few exceptions in the history of SCOTUS nominations, the judge’s confirmations were virtually pro forma. Thomas would have been too. That is until Hill came along and riveted the nation with her testimony about his alleged lewd sexual overtures. Hill came across as serious, leaned, and credible. She gave Thomas’s opponents a new lease on life. What was a pro forma confirmation, now became a close run-up for him.
He got pounded in the Senate Judiciary Committee. The media and the public gabbed incessantly about him and the allegations. He denied everything with his emotional, almost tearful, memorable rebuttal calling the allegation a “high tech lynching.” He played the race card like a fine-tuned fiddle. That turned the tide. Thomas narrowly sweated through a narrow yes vote on the committee and his confirmation moved to the full Senate. There it was another close-run up with Democratic senators piling in on him from every corner and vowing to stop his confirmation. They didn’t, but it was close.
Thomas prevailed for two reasons. One he had tradition on his side. That being a president can pick a high court justice, and it’s really the job of the Senate after a little bloviating by opposition party senators to confirm. The other reason was that Thomas had the GOP solidly behind him. He was a reliable, ultra-conservative, and GOP loyalist. The party recognized that Thomas would continue to tilt the high court to the right.
This cannot be emphasized enough. By then the pretense that judges are ideologically neutral and won’t impost their personal or political bias on the judicial process had long since been tossed out the window. Conservative justices are every bit the judicial activists and interventionists that they long railed at liberals on the court for being. The big-ticket issues of affirmative action, campaign financing, corporate and financial deregulation, environmental, voting rights, and gay rights, were issues that conservatives had a big stake in trying to wring conservative decisions out of the high court.
The GOP was then in the mid stages of trying to undo what it considered the liberal excesses of the Warren Court. Thomas was simply too important in the game plan not to be on the court. There was also the fear, even danger, that Bush might not be around after the 1992 elections and that a Democrat might be in the Oval office. Then all bets of continuing to pack the court with conservatives such as Thomas would be off. That fear was confirmed when Clinton ousted Bush in the election that year. But by then Thomas was snugly positioned on the court with his life time tenure.
He’s been well worth it for the GOP. You can practically mail his ultra-conservative vote in on any court case that even remotely touches on civil rights, police power, and corporations.
There’s absolutely nothing in Kavanaugh’s record to indicate things will be any different with him on the court. The same two reasons that got Thomas on the SCOTUS apply to Kavanaugh. He was picked by a president, and the Senate is almost dutybound as tradition dictates to confirm him after the usual railing about the damage that he will do to the court and the country as the fifth vote that conservatives have long dreamed about getting on the court to assure their legal agenda becomes firmly encrusted in law and public policy for years to come.
The other reason, as with Thomas, the GOP needs him on the court to make sure that this is the case. In 1991, the GOP had the votes to ram Thomas onto the court. In 2018, they again have the votes to ram Kavanaugh on the court. Whether the one- time sexual bad behavior by Kavanaugh is true or note, it can’t supersede the hard-bitten politics and political agendas the GOP has when it comes to the SCOTUS. Even if Ford testified about it as Democrats push for, along with a delay, in a confirmation vote it won’t change the outcome.
It didn’t with Thomas no matter how compelling Hill’s sexual abuse broadsides were against him. The GOP bets that just as the mud-slinging at Thomas over Hill quickly fizzled out, the same will happen with Kavanaugh once he’s on the high court. Just as sex didn’t derail Thomas it won’t derail him either–unfortunately.
Earl Ofari Hutchinson is an author and political analyst. He is the author of Why Black Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.