THE KAVANAUGH HEARINGS, DAY 2: SENATOR GRAHAM AGONISTES

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Addressing Judge Kavanaugh at today’s confirmation hearing, Senator Lindsey Graham, bemoaned the emergence of extreme partisanship in Senate confirmation hearings for appointments to the U.S. Supreme Court. Senator Graham cited the erosion of bipartisanship in confirmation hearings from the time Justices Kennedy, Scalia and Ginsburg were confirmed with affirmative votes ranging between 96-98 out of 100 senators, to the more partisan confirmations of President Obama's nominees, Justices Kagan and Sotomayor with 63 and 65 votes, respectively, and the Senator’s present expectation that Judge Kavanaugh’s total could be even less.
“So what’s happened?” the Senator asked. “Between then and now, ‘advise and consent’ has taken on a different meaning. It used to be the understanding of this body that elections have consequences, and you would expect the President who won the elections to pick somebody of their philosophy.” Hence the willingness of senators in earlier times to defer to the president when presented with well-qualified nominees.
Graham went on to cite the immediate negative responses to the announcement of Judge Kavanaugh’s nomination by prominent Democratic members of Congress (Schumer, Warren, Harris, Sanders and Pelosi: “Within an hour and eighteen minutes of your nomination you became the greatest threat to democracy in the eyes of some of the most partisan people in this country,” Graham added, pointedly faulting Democrats for their rejection of the previous Senate “understanding.”
Shifting gears, Graham exclaimed, “So what kind of country have we become? None of this happened just a couple of years ago. It’s getting worse and worse and worse, and all of us have an obligation to correct it where we can.” A noble ambition, to be sure, from a senator known for his work with Democrats on many issues like campaign finance reform, line item veto, global warming, waterboarding ban, immigration reform and his belief that judicial nominees should not be opposed solely on their philosophical positions. (On the latter point, Lindsey voted to confirm “every name that has been submitted since I’ve been here” (since 2003)). But is the Senator correct in implying the Democrats are responsible for the nation’s descent into tribalism these past two years?
I think not.
Partisanship has been woven into political fabric of the nation since its inception, starting with the Constitutional Convention in 1857 whose members divided most prominently between a) nationalists favoring strong central government and federalists favoring the retention by the states of the preponderance of government power and b) Northerners opposed to slavery and Southerners for whom the abolition of slavery was a deal-breaker. The Constitution contains many provisions attempting to reconcile these (among several other) partisan conflicts, such as a) the bicameral Congress, with the House representing the nationalist and the Senate the federalist ideal while b) the Enumeration Clause wherein slaves (euphemistically called “other persons”) were counted as “three-fifths of a whole person” in apportioning state representation in the House, and Article 1, Section 9 limiting Congress from prohibiting the importation of slaves (euphemistically: “such Persons as the states now existing shall think proper to admit”) prior to 1808, while eventually Congress passed a law abolishing the importation of slaves as of January 1, 1808. In short, the Constitution attempted to square the circle accommodating both partisanship and Enlightenment principles of liberalism, secularism, rationality, equality, free markets, with varying degrees of success.
Occasionally the working accommodation between partisanship and antithetical Enlightenment principles has degenerated into tribalism, with its implacable loyalty to a social group combined with strong negative feelings for people outside the group. The Constitution’s most notable failure, of course, is the Civil War, where tribal “irreconcilable” differences devolved into “irrepressible” armed conflict. Jumping ahead to the 1960s and 1970s, partisanship between the government and its supporters on the one hand, and opponents of the war in Vietnam on the other eventually became tribal, setting the stage for the removal of President Nixon.
If I had to pick the most recent moment when partisanship turned tribal, it would be on the day of President Obama’s inauguration, when congressional Republicans met and resolved that their firstpriority would be to make Mr. Obama a “one-term president.” Thereafter, Republicans in Congress engaged in unremitting obstruction unprecedented in modern times, resulting in near paralysis of the legislative process during most of the Obama administration. It is during this period that the increasingly partisan votes for Justices Kagan and Sotomayor highlighted by Senator Graham occurred, with Ms. Sotomayor receiving full Democratic and Independent support plus 8 Republican votes in 2009, while Ms. Kagan received all but one Democratic, both Independent and only 5 Republican votes in 2010.
Democrats have suffered not only the harsh consequences of Republican legislative obstructionism and bare-knuckle politics (including voter suppression and gerrymandering by Republican-controlled statehouses), but also Russian meddling in the 2016 election in President Trump’s favor, possibly with Mr. Trump’s collusion, resulting in the election of a Republican president with a minority of the popular vote for the second time in a generation. In addition, Democrats, in the minority of both houses of Congress, have been powerless to oppose Mr. Trump’s autocratic, unrelenting assault on virtually everything Democrats hold dear. Not surprisingly, faced with populist authoritarian tribalism from Mr. Trump and supine Republican caucuses in the House and Senate, Democrats have perforce retreated into tribalism as well.    
What of Mr. Graham’s appeal to Congress to “correct it where we can”? The answer rests with the outcome of the 2018 mid-term elections. If Republicans retain control of both Houses, then there will be no correction: “Trump will go full authoritarian, abusing institutions like the I.R.S., trying to jail opponents and journalists, and more — and he’ll do it with full support from his party.” Paul Krugman: https://nyti.ms/2OS0uGg By 2020, the “Grand American Experiment” could be over.
In my estimation, the only way to bridge the gaping fault line separating the Republican and Democratic tribes is for Democrats to win control of the House (and/or, less likely, the Senate), to restrain Mr. Trump’s worst instincts and force Republicans to return to some semblance of bipartisanship if they want to accomplish anything of substance for the country – what a concept!

David L. Smithwww.davidlsmith.com Author: The Predicament Click here to order.