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Kavanaugh and Trump are part of a larger crisis of elite accountability in America

#MeToo’s revolutionary challenge to America’s culture of impunity for the rich.

Trump Announces His Nominee To Succeed Anthony Kennedy On U.S. Supreme Court
President Trump with Brett Kavanaugh on July 9, 2018.
Mark Wilson/Getty Images

There’s a strange dimension to the Republican campaign to push through Judge Brett Kavanaugh’s nomination to the Supreme Court, on top of a credible accusation of sexual assault from his days in high school, which Kavanaugh denies. It’s their insistence that he is “one of the most qualified Supreme Court nominees to come before the Senate,” as Senate Judiciary Committee Chair Chuck Grassley put it. “His credentials are well known.”

But what are these qualifications and credentials? An honest look at his career shows that it’s extraordinarily undistinguished.

Born into a privileged family that was well-connected in Republican Party politics, Kavanaugh coasted from Georgetown Prep, where he was apparently a hard partier, into Yale, where he joined the notoriously hard-partying secret society Truth & Courage, and then on to Yale Law School.

Soon after graduating, he got a gig working for independent counsel Ken Starr — a plum position for a Republican lawyer on the make because the Starr inquiry was supposed to take down the Clinton administration. Instead, it ended up an ignominious, embarrassing failure, generating an impeachment process that was so spectacularly misguided and unpopular that Democrats pulled off the nearly impossible feat of gaining seats during a midterm election when they controlled the White House.

Kavanaugh clerked for Alex Kozinski, an appeals court judge who was well known to the lay public for his witty opinions and well known to the legal community as a sexual harasser. When the sexual harassment became a matter of public embarrassment in the wake of the #MeToo movement, Kavanaugh professed to have simply not noticed anything amiss — including somehow not remembering Kozinski’s dirty jokes email distribution list.

Despite this inattention to detail, Kavanaugh ended up in the George W. Bush White House, playing a critical behind-the-scenes role as staff secretary to an administration that suffered the worst terrorist attack in American history, let the perpetrator get away, invaded Iraq to halt the country’s nonexistent nuclear weapons program, and destroyed the global economy.

Kavanaugh then landed a seat on the DC Circuit Court, though to do so, he had to offer testimony that we now know to have been misleading regarding his role in both William Pryor’s nomination for a different federal judgeship and the handling of some emails stolen from Democratic Party committee staff. On the DC Circuit, he issued some normal GOP party-line rulings befitting his career as a Republican Party foot soldier.

Now he may end up as a Supreme Court justice despite never in his life having been involved in anything that was actually successful. He has never meaningfully taken responsibility for the substantive failures of the Starr inquiry or the Bush White House, where his tenure as a senior staffer coincided with both Hurricane Katrina and failed Social Security privatization plan as well as the email shenanigans he misled Congress about, or for his personal failure as a bystander to Kozinski’s abuses.

He’s been a man on the make ever since his teen years, and has consistently acted with the breezy confidence of privilege. As he told Catholic University’s Columbus School of Law, “What happens at Georgetown Prep stays at Georgetown Prep,” though the line was mysteriously omitted from the written transcript of the speech given to Congress.

Sexual assault allegations are an unusually stark example of a system that, by and large, allows elites to operate with impunity while demanding maximum accountability for others. People who took out “irresponsible” mortgages lost everything during the financial crisis, while bank executives who required drastic government intervention to stay afloat continue to amass money and power. Donald Trump’s business practices led to a long list of slap-on-the-wrist fines, while youthful drug dealers or car thieves sit in jail.

The #MeToo movement’s focus on high-profile men is noteworthy not because rich celebrities are the only perpetrators of sexual harassment and worst offenders, but because the idea of holding powerful and successful people accountable for anything at all has become somewhat revolutionary.

About that financial crisis

Last week, before the latest accusations against Kavanaugh came into view, I was transfixed by the smug tone of key policymakers looking back on the 10th anniversary of the financial crisis. Neil Irwin, who covers such things for the New York Times and thus defines the conventional wisdom, wrote an article looking back headlined “The Policymakers Saved the Financial System. And America Never Forgave Them.”

Voters are angry about the crisis and the response, you see, but “for all that anger, the engineers of the American crisis response got the economics mostly correct, and more right than most of those — including leading economic thinkers and prominent politicians — who were second-guessing them.”

There is certainly a level on which I agree with Irwin’s analysis. Most of the unpopular things that were done in 2008-2011 — the bailouts, the stimulus bills, the rounds of quantitative easing — made things better relative to a world in which nothing was done at all. But on another level, this is a cop-out.

The job of macroeconomic stabilization policymakers isn’t to make things better than they would have been if nothing had been done; it’s to prevent years-long spells of mass unemployment from inundating the country. The people in charge simply didn’t do that. And if their excuse is that it’s hard to do that in the wake of a giant financial crisis, that only makes their error in not better regulating the system to prevent the crisis more inexcusable.

Real errors of policy substance made at the elite level by Hank Paulson, Ben Bernanke, Tim Geithner, and others cost millions of people their homes, their savings, and their dignity. And instead of apologizing for their shortcomings and spending their golden years doing penance, they mostly cashed in with Wall Street jobs and now have the New York Times explaining that the public doesn’t appreciate them enough.

Elites in both the private and public sector held on to everything in light of their partial success in rescuing the economy, while millions of ordinary people suffered due to their partial failure.

Only one relatively obscure player was sent to jail for white-collar crimes intimately connected to the financial crisis. The Obama administration, in part due to its own choices and in part because it was hamstrung by some Bush-era Supreme Court decisions that made convictions harder to secure, didn’t really try to bring anyone to justice. The top-ranking lawyers responsible for those decisions have themselves now largely rotated back to the private sector.

Meanwhile, Donald Trump — a serial violator of a wide range of financial regulations and other laws — made his way to the White House.

Impunity all the way up

The most striking thing about Trump’s record, in my view, is how frequently he has been caught doing illegal things only to get away without paying much of a price. His career is a story of a crime here, a civil settlement there, but never a criminal trial or anything that would deprive him of his business empire or social clout.

Back in 1990, he needed an illegal loan from his father to keep his casinos afloat. So he asked for an illegal loan from his father, received an illegal loan from his father, and was caught by the New Jersey gaming authorities receiving said illegal loan from his father. But nothing really happened to him as a result. He paid a $65,000 fine and moved on.

This happened to Trump again and again before he began his political career. From his empty-box tax scam to money laundering at his casinos to racial discrimination in his apartments to Federal Trade Commission violations for his stock purchases to Securities and Exchange Commission violations for his financial reporting, Trump has spent his entire career breaking various laws, getting caught, and then essentially plowing ahead unharmed.

When he was caught engaging in illegal racial discrimination to please a mob boss, he paid a fine. There was no sense that this was a repeated pattern of violating racial discrimination law, and certainly no desire to take a closer look at his various personal and professional connections to the Mafia.

If Trump had been a carjacker or a heroin dealer, this rap sheet would have had him labeled a career criminal and treated quite harshly by the legal system. But operating under the rules of rich-guy impunity, Trump remained a member of New York high society in good standing — hosting a television show, having Bill and Hillary Clinton attend his third wedding as guests, etc. — before finally leaning into his lifelong dalliances with racial demagoguery to become president.

Over the course of that campaign, he wasn’t only credibly accused of several instances of sexual assault — he was caught on tape confessing — but he won the election anyway, and Congress has shown no interest in looking into the matter.

The good news is his election has provoked some powerful countermobilization that may begin to rid America of its elite impunity problems.

#MeToo’s revolutionary potential

It’s only in the broader context of elite impunity that the whining of the #MeToo men becomes, if not justified, then at least comprehensible. It’s not that people like Matt Lauer (out of work but fantastically rich), Charlie Rose (retired at the very normal age of 76), and John Hockenberry (may be headed for a slightly early retirement at 62) are experiencing a particularly acute form of suffering. But they all believed that they had ascended into the Trump/Kavanaugh/Paulson zone where, in light of having been important and well-connected for long enough, fundamentally, nothing permanently bad could ever happen to them.

The #MeToo movement is contesting that presumption of impunity and suggesting that powerful men who commit serious transgressions should suffer the fate of non-powerful people who make serious mistakes — permanent, negative repercussions that are genuinely difficult to expunge and overcome.

Celebrities are in some sense a natural test case for this, since the essence of their work is to be popular, and it can be hard to be popular when the facts about your abuse of women become known.

But that idea is really just a subset of a larger notion that, though doubtless never fully adhered to in practice, at least conceptually undergirds healthy societies — the notion that the most powerful and influential people in public affairs should be held to a higher standard of conduct rather than a lower one.

This is the notion that precisely because Kavanaugh went to the right schools and held important jobs, we should judge his performance in those jobs — including his inattention to the Kozinski harassment and his misleading congressional testimony (to say nothing of the assault allegations) — with a more critical eye than we would apply to an assistant manager at a Target. That if you take on the job of steering the American economy, your performance will be judged based on whether or not you steered it to prosperity — not whether you steered it better than your least informed critics would have.

No society ever truly lives up to the ideals of social accountability. But there are moments when reality grows closer or more distant from its ideals, and it’s become clear that in recent years, the United States has strayed very far from the path. So much so that the idea of holding a member of the inner circle of the American elite accountable for his actions strikes many as fundamentally unfair — a violation of the settled rules of society in which people (or at least men) who go to the right schools and meet with a degree of professional success get to stay in the club, regardless of what happens. To heal the country, that, fundamentally, is what needs to change.