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5 October 2018
Beto v. Kavanaugh

Beto Faces the Voters; Brett Faces the Senate

There’s a new meme on social media: If Beto O’Rourke’s DWI can be forgiven as a youthful indiscretion, why can’t we forgive Brett Kavanaugh’s alleged attempted rape of a 15-year-old when he was 17?

For a change, a facile talking point (likely bot-driven) is more than an inflammatory text to blazon across viral GIFs. It’s a question worth considering.

Beto’s campaign against incumbent GOP Texas senator Ted Cruz and Kavanaugh’s hearing before the Senate Judiciary Committee, evaluating his fitness for the Supreme Court, are not exactly analogous.

In an election to the U.S. Senate, we, the voters, collectively make the decision who should represent us. In a confirmation hearing, the decision making is one step removed.

Beto’s drunken car wreck is a blot on an otherwise impressive résumé, even if it shocked him into becoming the responsible entrepreneur who made it to the House of Representatives. If you think, say, that his history might make him likely, as a legislator, to go easy on drunk drivers, you get to vote against him for that reason.

Should O’Rourke make it to the Senate, he will serve Texans knowing that, if he wants to keep his job, he’ll have to stand for reelection in a GOP-stronghold state. He will be held accountable in the press—and (assuming he runs) in the next election—for every vote he casts or misses. Kavanaugh, if confirmed, will no longer answer to anyone, likely ruling on cases involving relative power and gender equity—that is, issues on which a prospective justice accused of a pattern of intoxicating and sexually abusing women might have an unacceptable bias.

Given the choice of a Beto O’Rouke as he is, with a DWI on his record, and an alternate-universe Beto who differs only in not having that DWI, we’d choose the second Beto. But, as voters in a binary political system, we don’t get that choice. We only have the actual Beto, with his strengths and weaknesses (including youthful drinking) versus the actual Ted Cruz, with his strengths and (well known) weaknesses. Those of us who find Beto’s character more appealing than Cruz’s aren’t excusing his drunk driving; the calculus is between both men’s virtues and faults.

And, of course, most votes won’t be based primarily on the character of the candidates. That’s where the viral GIF verges on propaganda. It’s meant to inflame anger against Beto among people who would excuse the exact same behavior if he were Republican. We know that because of how George W. Bush’s alcohol problems played out in his first presidential election.

Those equating Beto’s youthful mistake with Kavanaugh’s to discredit the former don’t realize it cuts both ways: If you think Beto’s DWI is disqualifying, isn’t Kavanaugh’s alleged rape attempt even more disqualifying? One starts to suspect sexual assault isn’t considered such a big deal if among former prep-school jocks.

No, most people won’t be voting for Beto the man or Ted the man, but the Democratic or Republican nominee, based on things like economic interests, ethnic identity, and religious affiliation. But a Supreme Court justice is supposed to be a neutral arbiter. Kavanaugh’s angry tirade in front of the Judiciary Committee denouncing the Democrats and displaying personal animus against the Clintons should in itself disqualify him for the position.

We don’t get to vote for someone just like Beto but without the DWI, at least not now, after the primaries. But President Trump could easily replace Kavanaugh with another nominee, indistinguishable from Kavanaugh when it comes to partisan hackery, who hasn’t been accused of a drunken rape attempt (and other similar behavior). There are women on Trump’s shortlist. Maybe I’m stereotyping, but I’ll bet a female nominee won’t have someone from her past coming forward to accuse her of sexual assault.

It isn’t clear why the GOP doesn’t just keelhaul Kavanaugh and come up with a new nominee. George W. Bush did it with Harriet Miers and the result was Alito. Not a bad outcome, if you’re a Republican. But Trump’s instinct is to double down when challenged, never to show weakness. It may be that what makes Kavanaugh unique, and what keeps Trump from withdrawing his nomination, is his views on presidential impunity. But the larger conservative narrative, all over their favored media such as AM radio, is one of male privilege under attack from progressives, especially female, viewed as enemies.

The polls are already showing female alienation from the GOP, increasing the chances of an electoral disaster for the billionaire boys’ club and their Bible-thumping enablers. The longer and harder the Republican-dominated Senate pushes for Kavanaugh, the more women are going to defect, or just stay home in November.

Further, if a Senate election is foremost about party affiliation and ideology and secondarily about character, our tradition (sadly and quickly eroding) has been for nominees to abjure party affiliation and ideology, to be neutral referees of the law under the constitution, leaving political questions to Congress and the president, thus ultimately to the voters. Kavanaugh’s angry opening statement at last week’s hearing confirmed what we already knew from his abetting Ken Starr’s attacks on Clinton: He’s a partisan hack with a temperament unsuitable for the Supreme Court or, really, for any court.

A confirmation hearing is not a trial. Evaluating a nominee for a lifetime appointment to the top legal job in the nation doesn’t require proof beyond a reasonable doubt. Apart from the ugly picture of how Kavanaugh behaved when he was young and a heavy drinker, there are plenty of other reasons the Senate ought to reject him, especially his anti-constitutional stance against limits on presidential power. Kavanaugh has become toxic among a large swath of the electorate, and even the most extreme right-wingers in Congress must have some inkling “bros before hos” in the Senate won’t play well with women voters back home.

Beyond the Democrats’ wildest hopes, Kavanaugh has become irredemably damaged; the GOP, for its own good, should force him to withdraw and select another candidate. As for Beto and Ted, we’ll find out in November.

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