The swirling controversy over allegations that Supreme Court nominee Brett Kavanaugh attempted to rape a 15-year-old when he was 17 is a reminder that Democrats were right to accept the resignation of Sen. Al Franken months ago. They went after one of their own, and despite the pain, they’ve come out on the other side stronger for it.
I met Franken in several different contexts before he ever ran for office. I liked him a lot. And I think his voice in the Senate is genuinely missed on antitrust policy. But as liberals face criticism that their attacks on Kavanaugh are nothing but political opportunism, they can point to a concrete example of how the party believes in the principle that bad acts should be punished, even when it is inconvenient.
Obviously, the accusations against Kavanaugh are not the only reason that most Senate Democrats are opposing his confirmation. Kavanaugh is a loyal follower of a plutocratic brand of judicial activism that Democrats reject. Even if he were a person with an unblemished record of personal integrity, most Democrats would vote against him.
There are other blemishes on this record, too, mostly about his honesty or lack thereof, including his lack of candor about trafficking in stolen emails, his dishonesty regarding his work with William Pryor, his obliviousness (at best) about Judge Alex Kozinski, his deeply dishonest acceptance remarks when Trump first picked him, and beyond.
Democrats are pointing to these at least in part as an attempt to keep the seat on the Court open through the midterms, at which point it’s at least possible Democrats will hold a Senate majority and thus can force Trump into a more moderate selection.
Still, opposing Kavanaugh is worthwhile even if it simply leads to the confirmation of a broadly similar jurist who doesn’t face credible accusations of sexual assault. Appointing Kavanaugh to the Supreme Court condones conduct that can damage the country over and above jurisprudential questions.
In another world, Democrats are facing a fiasco
Imagine a plausible alternate reality in which Franken was still in the Senate and, indeed, still on the Judiciary Committee.
Franken himself obviously wouldn’t be a particularly strong and credible voice on the Kavanaugh allegations in that world. And his colleagues on the Democratic side would be tied up by the practical need to defend him.
We’d inevitably end up getting into the game of parsing degrees of badness, with Democrats arguing, rightly, I suppose, that a pantomimed groping isn’t as bad as an attempted rape, and Republicans firing back — also rightly, I suppose — that bad acts committed by a teenager aren’t as damning as bad acts committed by a full-fledged adult.
As takes pile upon takes, one can hope that the higher principle of “two wrongs don’t make a right” would get a moment in the sun. And hopefully that the question of Kavanaugh’s fitness for a lifetime appointment could be considered on its own terms. But realistically, the whole thing would have turned into a fiasco that was not effective as an anti-Kavanaugh tactic or as part of the larger ongoing project of trying to galvanize women’s anger into concrete electoral action.
With Tina Smith taking Franken’s place, Democrats can, instead, bank on the simple points that bad actions are bad and that high-ranking public officials should be held to a high standard of conduct.
“Unilateral disarmament” isn’t a thing
There was a key worry among progressives during the peak of the Franken news cycle that by holding him accountable for offenses that were less grave than the ones that Republicans are letting Donald Trump skate by on, the Democratic Party was engaging in a foolish form of unilateral disarmament.
The specter of disarmament is, however, fundamentally unreal. Adhering to a high standard of conduct helped Democrats win the Alabama Senate race, by underscoring the seriousness of the charges against Roy Moore. And while it may not ultimately succeed in blocking Kavanaugh’s confirmation, it will certainly raise the political price that vulnerable Republicans like Dean Heller (R-NV) pay for backing him and take the pressure off red-state senators like Joe Donnelly (D-IN) to support him.
Democrats are lucky that the abuse allegations against Rep. Keith Ellison (D-MN) seem to have some credibility problems in the form of a mysterious video that keeps not materializing, but it’s also pretty clear that they’d be better off in the Minnesota attorney general’s race if they had a nominee who didn’t have this cloud over his head.
More egregiously, they’ve actually created a huge political headache for themselves in New Jersey by not “disarming” unilaterally after Sen. Bob Menendez (D-NJ) got by with a hung jury on federal corruption charges. Despite the ruling that his conduct didn’t meet the legal standard for a bribery conviction, it certainly met the ordinary language standard of corrupt.
Had state and national part figures encouraged some other politician to challenge Menendez, she almost certainly would have won the 2018 nomination and would be cruising to an easy victory today. Instead, the party rallied around the incumbent, he turned aside a token primary challenge from a nobody, and now he’s struggling to win reelection in a blue state despite a massively favorable national political climate.
Politics is, famously, an ugly business. But at the end of the day, cleaning up your own house isn’t just the right thing to do — it’s smart politics. If Kirsten Gillibrand and other women of the Senate Democratic caucus hadn’t pushed out Franken months ago, today’s strong political hand versus Kavanaugh easily could have been a Menendez-like fiasco instead.