Outside the Box: With Kavanaugh vote, McConnell and Republicans strike a blow at the U.S. Constitution

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Those of us who see President Donald Trump as an authoritarian threat to America’s constitutional democracy have looked to Republicans in Congress, as the majority party, to set limits on executive power and ensure the president is accountable to the rule of law.

This reflects the belief that checks and balances within the government are designed to, in  James Madison’s words, prevent “the accumulation of all powers [in one branch].”  While congressional Republicans have often proven to be not up to the task of reining in Trump’s authoritarian instincts, some have offered at least rhetorical criticism of the president’s excesses. That provided at least a thin basis for hope that Republican members of Congress might rise to the occasion at some point.

Judge Brett Kavanaugh’s Supreme Court confirmation hearings raise a chilling prospect:  Republicans in Congress may not simply be passive observers of Trump’s authoritarian instincts. Instead, many may be actively embracing authoritarian tactics, by which I mean tactics opposed to constitutional democracy, the rule of law, and the principle that government powers are limited.

Republican leaders are making a determined effort to force Kavanaugh’s confirmation in the face of serious concerns about his fitness to serve on the Supreme Court, or indeed any federal court. Senate Majority Leader Mitch McConnell (R-KY) announced his intention to move ahead with a confirmation vote even before senators had a chance to review a supplemental FBI investigation into allegations of sexual misconduct, including attempted rape, by Kavanaugh.

Even some Republican senators acknowledged that McConnell’s actions would be seen as nothing more than a naked power play.  Sen. Lisa Murkowski (R-AK) reportedly told her colleagues this week “that the image of ‘old white men’ ramming Kavanaugh’s nomination through, under these circumstances, in the midst of the national #MeToo conversation, was crippling the party.”  Sen. Ben Sasse (R-NE) reportedly “echoed [Murkowski’s] sentiments”.  (Sen. Murkowski was the sole Republican to vote against moving Kavanaugh’s nomination ahead in a cloture vote on Friday).

The Kavanaugh controversy is not merely about the Republicans’ electoral prospects in November. McConnell’s tactics strike at the heart of the U.S. Constitution. Government officials who are committed to constitutional democracy understand that restraint is sometimes necessary.

Governing is not simply a matter of exercising raw power — at least, not in a functioning liberal democracy. McConnell is making clear that, so long as he has the votes, he will do as he pleases, including forcing a nominee onto the court who faces credible allegations of sexual violence and publicly demonstrated that he is a partisan who lacks the judicial temperament necessary to serve as a federal judge. 

The Senate has the formal authority to do this. But if it confirms Kavanaugh, the Republican majority will be sending the disquieting message that it does not hold Supreme Court nominees to the highest standards and it does not take allegations of sexual assault seriously. It will be naming an openly partisan member to the national high court that is supposed to operate as an independent, nonpartisan check on the other branches of government. That has deeply troubling, even toxic, implications for the rule of law.

The American constitutional system, in theory, is designed to set limits on government power.  But, as we’ve seen, the system can fail when members of one branch of government put partisan concerns ahead of the rule of law. It’s worth remembering that Madison saw the people themselves as the primary check on government power.  When government officials seek to break free of the limits on power, popular response, mass action, and political organizing can be an important response.

We may see this kind of response developing — broad popular action to reject the Kavanaugh power grab and funnel rage into political action.  Hundreds of protesters calling for women to be heard  flooded a Senate office building on Thursday.  This is not an isolated event. There is evidence that women have been politically energized since the 2016 election. They are organizing campaigns, engaging in mass protest, and running for office in unprecedented numbers

The central question at the moment is whether this energy will translate into electoral victory this November.  With Republicans in Congress serving as partners in Trump’s authoritarian campaign, this may be the best hope for constitutional democracy.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of “Power Without Constraint: The Post 9/11 Presidency and National Security,” published in 2016 by the University of Wisconsin Press.