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By Tom Cushing

A fish out of water

Uploaded: Oct 1, 2018

https://www.youtube.com/watch?v=S-IkWpm7TS0 (safe for work)

Self-referential Blogger note: It’s been a while – all those tribal drumbeats. Your blogger preferred to use time more wisely, like watching the A’s, supporting mid-term election turn-out here and in Nevada, crafting an ethics course - and even wasting it frivolously.

There comes a time, however, when civic duty transcends these pass-times. If Professor Ford can selflessly step into the life-altering media glare, then I certainly ought to do my little bit here, and drag myself back in.

My message:

Brett Kavanaugh is a privileged, unjudicial, dissembling disaster, who must not be confirmed to a lifetime appointment on the Supreme Court.

There’s a useful old Ethiopian adage that works here: “the fish is the last to know he’s in the water.” In his poorly conceived and worse-executed hearing room hissy, the nominee demonstrated the wisdom of that saying, and illustrated the folly of not learning its lesson. He denied having any advantages that supported his admission to Yale Law School, ascribing his success instead to personal hard work.

He thus showed us all that he has no idea that he was endowed with the precious, unearned gratuities of being born in this country, white and male, into wealth, and educated at an elite private preparatory school. He was also an undergraduate at Yale and chosen to one of its secretive social societies – fertile breeding grounds for future Masters of the Universe.

Did he succeed in those places? Absolutely – he did not squander all his time drinking and carousing. But did that give him any adequate appreciation of his ample good fortune? Apparently not even a minnow's share. He is a fish whose rarified environments supported, nurtured and promoted him – and he had no inkling of it. Places like Georgetown Prep and Yale attempt to cultivate in their students a sense of their exceptionalism. Kavanaugh was obviously convinced, and remains so.

Perhaps that also accounts for his conviction that the Kennedy seat on the Supreme Court is His – by birthright and as having swum with the currents of Potomac power. He was first a clerk to the same Justice Kennedy, and later served as a dedicated aide to Ken Starr in the Whitewater probe - the protracted and venomous seven-year(!) pursuit of the Clintons.

That very unconsciousness causes great concern about his qualifications for the nation’s highest court. The best Justices there understand that “the life of the law has not been logic, but experience” (per Justice Oliver Wendell Holmes Jr., one of the greats). The law lives in its real-life impacts on people – folks whose lives and times are far removed from worries about ace-ing that poli-sci seminar, or sourcing that kegger.

Kavanaugh lacks such personal experience; he also clearly does not appreciate the difficulty and challenges of those lives-less-blessed. A patrician who has deluded himself into believing he succeeded on his own merits is quite unlikely to understand the tribulations of the rabble (freely translated as “the rest of us”).

His writings further demonstrate that he believes the ultimate GOP patrician, the President, is essentially above and beyond the reach of laws that apply to (all) the rest of us. Should anyone be surprised? Probably not. But more important - does anyone consider that to be sound public policy outside a dictatorship?

Further, Kavanaugh’s temperament is as an advocate, not a judge. His petulant, arrogant attacks on the process and the Senators questioning him showed not only an umbrage born of privilege but a demeanor more suited to trench warfare than contemplative deliberation.

Indeed, the nominee thereby demonstrated the partisan bones he made in his uber-aggressive, ultimately unsuccessful advocacy during the never-ending Starr investigations. In addition to seeking a reopener on the long-settled Foster suicide, he proposed a puerile line of attack questions to be asked of the then-sitting democratic Prez (whom he apparently considered fair game?), concerning the very most graphic anatomical details of his sexual assignations. That’s not what judge-types do, and any appreciation of the karmic irony of having his own sexual past laid publicly bare was surely lost in his rage.

Then there’s the evasion and dissembling pattern of behaviors that have themed his committee process, and the attempted disappearance of a very key witness (“How did you find me?!” was the first astonished response of Mark Judge, holed-up in an obscure beach town). It has been an obvious search for loopholes - those technicalities that lawyers seek, and people seeking answers disdain. When asked directly why he wouldn’t want an air-clearing investigation, he deflected - repeatedly and unconvincingly. Those are not the actions of a seeker of truth, nor, frankly, of an innocent man.

There have been reports that Kavanaugh’s practiced outrage was directed by the current White House occupant, who’s much better at lies and insults (and who has little understanding of anything remotely judicial). If so, the nominee was in a tough spot – should he abide his sponsor’s wishes, or act like the calm, sober adjudicator that most folks want in their judges? That he went with the former is further proof of destructive partisanship, as well as another demonstration that nobody who comes in close contact with this President comes away with a reputation unsullied.

Do I think he did what he’s been credibly accused-of – yeah, I do. And for that, and for a multitude of other reasons, he’s not the person on whom to bestow a lifetime tenure on the highest court in the land. He’s a fish out of his depth, and out of water, and maybe out of time.