Why Won’t Democrats Move Left in the Suburbs? By Lee Drutman

September 27, 2018

8-10 minutes

The sprawling 10th district of Virginia stretches from the conservative West Virginia border to the wealthy and more liberal D.C. suburbs. With a median household income of more than $120,000, it is the third-wealthiest congressional district in the country. In 2016, Hillary Clinton won it, 52 percent to 42 percent, but its Republican congresswoman, Barbara Comstock, a former lawyer and congressional staffer with an estimated personal net worth of nearly $1.3 million, was narrowly reelected. Two years later, though, it looks as if Comstock might lose. Early polling shows her Democratic challenger, Jennifer Wexton, with a 10-point lead, and Democrats are starting to believe they can win this seat for the first time since 1978.

The path to a Democratic House majority goes straight through upscale suburban districts like VA-10, places where Hillary Clinton outperformed the local Democratic congressional candidate two years ago, and where enough Republicans are unhappy with Donald Trump and the GOP that their partisan allegiances are up for grabs. The average median income across districts that voted for Clinton but sent a GOP member to Congress in 2016 is just over $75,000. The average median income across all other House districts is just under $60,000. Arguably then, a simple math holds for the Democrats: To take back the House, they have to win wealthier districts.

At what cost? How much will Democrats have to compromise the party’s liberal economic and social principles? My own analysis, published last year by the Democracy Fund Voter Study Group, suggests that it won’t be that much. Disaffected Republicans who supported Clinton aren’t just anti-Trump; they’re also worried about economic inequality, generally supportive of social welfare programs, and willing to accept higher rates of progressive taxation—perhaps not as much as core Democrats, but still, far more than typical Republicans.

The implications are clear: The party, in all likelihood, could safely move left on economic issues and still win the suburbs—and with them, the House. But the party establishment seems to have drawn different conclusions. Democratic power brokers don’t seem to be debating whether their candidates would do better if they embraced more left-leaning fiscal policies. Instead, in these pivotal suburban swing districts, the party has consistently supported corporate-friendly candidates who can raise tons of money (often because they have personal networks of wealthy friends and business associates) and who present a “moderate” face to upscale suburban voters. They’re people like Jon Ossoff, the fiscal and social moderate who ran (and lost) a special election in Georgia, and Angie Craig, a medical device executive in the Twin Cities, whose experience running her company’s corporate PAC made her the leadership’s pick to run for Minnesota’s 2nd district. Such candidates have left the party once again out of step with its voters and grassroots organizers, as Democratic strategists continue to chase after suburban Republican moms who, they believe, would vote for a Democrat, if only Democrats didn’t want to regulate the big banks quite so much.

How did the suburbs become so pivotal? Democrats and Republicans once competed equally in the cities and in the countryside, because both national parties were really just loose coalitions of state and local parties that spanned the ideological spectrum. In 1960, for example, almost every state was competitive, regardless of how urban or rural it was.

Following the civil rights era in the 1960s and the subsequent cultural backlash of the 1970s, the parties began to align along more consistent cultural lines, and the geographical alignment of the parties shifted, too. Democrats became the party of cosmopolitan values, secularism, and diversity, and therefore the cities. Republicans became the party of traditional values, and therefore the conservative countryside. As a result, the suburbs became pivotal battlegrounds. Districts like PA-4 (outside Philadelphia) and CO-6 (outside Denver), situated at the swing-y intersection between the country and big-city suburbs, earned an increasingly coveted place as the deciders of elections. A suburban vote had become worth more than an urban one.

These shifts have not been good for the Democrats. The Republicans, as the rural party, have a distinct advantage. There are very few congressional districts that are all country. But there are many districts that combine small-to-medium cities with countryside, or that combine big-city suburbs with countryside (like VA-10). Republican voters are simply spread more efficiently across congressional districts.

In 2016, there were 62 overwhelmingly Democratic congressional districts (where Clinton won 70 percent of the vote), but just 23 overwhelmingly Republican districts (where Trump won 70 percent of the vote). This is partly because of Republican gerrymandering since 2010. But the consequence, by most analysts’ estimates, is that Democrats will have to win the popular vote in the 2018 midterms by a good 6 or 7 percentage points to win a majority of seats in the House. It’s a similar story in the Senate, where there are more red states than blue states, although there are slightly more blue voters than red across the country.

This situation is more than just unfair. It influences how Democrats position themselves to win: Structural disadvantages push the Democrats toward more conservative candidates, and structural advantages allow Republicans to be even more conservative and still win. The fact that wealthy suburbs are so pivotal only makes the problem worse. American political institutions hinge on a key swing voter who is both a little more conservative and a little more affluent than the average voter. It’s up for debate just how conservative that key voter actually is, but what’s clear is that the current system dictates the kind of fights the party is having, and gives those who want to pull the party to the right more leverage than they’d otherwise have.

For the moment, Democratic voters, however much they want left-leaning candidates, might be stuck with cautious moderation. Their leaders don’t yet seem ready to gamble on candidates with more liberal economic stances. But if Democrats do take Congress, they should use their power to implement a fairer system that treats all voters equally, regardless of where they live.

Most advanced democracies have some form of proportional representation, but few started out with it. America’s current antiquated electoral system was imported from the British countryside more than 200 years ago, applied unthinkingly by colonists who didn’t have the benefit of knowing about modern, fairer voting systems. The Framers did, however, give Congress the power to determine how states elect their representatives. And there are models for reform. The Single Transferable Vote (STV), for example, a form of proportional representation that has been used successfully in Ireland for almost 100 years, doesn’t have any single-member districts. Each district has between three and five representatives. During an election, voters rank candidates in order of preference. If one candidate is the overwhelming choice in a particular district, some of her “overhang” votes are then redistributed to second-choice candidates. Candidates are eliminated from the bottom up. The top three to five are elected. The result is that all districts are competitive, and therefore all voters matter equally. No party could take an unfair geographic advantage.

Admittedly, such significant electoral reform is a long shot in the United States. But it’s not impossible. In Maine, voters this year reaffirmed their 2016 choice to implement statewide ranked-choice voting, a variant of STV. That made Maine the first state in the nation to abandon the old system.

If applied nationally, such a change would effectively create a multiparty system in which left-wing politicians could run as left-wing politicians without needing the blessing of Democratic Party. For now, however, the only way to make districts like VA-10 obsolete is to win them.

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

Marty Lederman

Saturday, October 06, 2018

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents.  I had just turned eight years old.  I’m now almost 58.  And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats.  That’s right:  By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.  

The appointment of Merrick Garland should have brought an end to that extraordinary streak.  Retaining control of the Court, however, has become an article of Republican faith--hardly surprising when it's become a bulwark of theirs, a virtual background assumption, for fully half a century.  And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority.  A full century of Republican control is not hard to imagine.  (And how’s this for a (related) factoid?:  In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.) 

It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life:  In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising.  But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period--including in six of the past seven elections.  Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas's resignation—including at least a couple of huge majorities.  Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.

This stark contrast between electoral and judicial ratios is especially pronounced today.  When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote.  Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments). 

Moreover, two key Justices in this robust majority, Gorsuch and Kavanaugh, not only were appointed by a President who received almost three million votes fewer than his Democratic opponent--and who continued to have historically low disapproval ratings when he made the appointments--but their nominations were actually rejected by Senators representing strong majorities of the nation’s population.  The Senators who confirmed Gorsuch, for example, represented states in which only 47 percent of Americans lived (based on the 2017 estimates, and splitting the population totals for the nine states (CO, FL, ME, MO, MT, NV, OH, PA, WI) in which the two Senators split their votes).  The gap on Kavanaugh’s vote is even greater:  Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population (once again, splitting equally the population totals for the 13 states (AL, AK, CO, FL, IN, ME, MO, MT, ND, NV, OH, PA, WI) in which the two Senators split their votes)  [I'm counting Sen. Daines as a "yes" vote and Sen. Murkowski as a "no."]  

What’s more, because of our increasing partisan polarization and the corresponding battle lines that have been drawn in terms of jurisprudence, the solid conservative majority on the new Court will—perhaps for decades to come—be much more homogenous on the vast majority of closely contested and important questions than the pre-Roberts Court ever was.  (After all, Justices Brennan and Souter were more liberal than the Presidents who appointed them, and Justices O'Connor and Kennedy occasionally voted with the "left" wing of the Court on a handful of high-profile issues, including abortion and gay rights.) 

Of course the future is unwritten, and no one can say for certain.  Even so, it's fairly safe to assume that the new Court will be far more aggressively conservative than any in (at least) the past 80 years.  

The new majority will likely take significant steps, for instance, to sanction further Republican-enacted limits on the franchise; to bless efforts that skew the electoral system strongly in favor of Republican majorities; and to invalidate laws of other kinds (campaign finance regulations; agency fees; affirmative action initiatives; etc.) that tend, on the whole, to strengthen Democratic constituencies.  In other words, we should expect to see plenty more decisions to add to an already imposing list that includes, e.g., Bush v. Gore; Crawford/Husted; Gill/Benisek, et al.; Citizens United/WRtL (and other campaign finance cases); Shelby County; Parents Involved; Janus; Epic/Concepcion, et al.; etc. 

And then there are the many cases the Court majority will likely decide, invoking several different constitutional provisions and doctrines--the Free Speech Clause (especially); perhaps the Property and Contract Clauses; extra-textual federalism limits; limiting constructions of Congress’s post-Civil War enforcement powers; perhaps the Free Exercise Clause (and certainly RFRA); etc.—to narrow the scope of constitutionally permissible initiatives if and when the Democrats ever do again obtain majorities in the political branches.  

The new five-Justice majority is also likely to dramatically enhance executive authority, in both foreign and domestic affairs, including by, inter alia, endorsing “unitary executive” theories (rejected by all but one of the Justices on even the Rehnquist Court) and statutory interpretations (see, e.g., the SG's aggressive brief in Lucia) that will constrict agency independence; perhaps re-asserting a more robust nondelegation doctrine; discounting the role of international law in construing the President’s war powers (see Justice Kavanaugh’s remarkable opinion in al Bihani, discussed here); applying extraordinary deference to the President in areas of foreign affairs, national security and immigration, even in cases (e.g., Trump v. Hawaii) where the presidential rationales are transparently pretextual.

In all of these ways, the Court will (probably) strengthen the ability of the Republican Party to entrench electoral power, and place obstacles in the way of future Democratic Presidents and legislatures to accomplish their desired substantive ends, despite the fact that the nation’s demographics and its electorate appear to be heading inexorably in the opposite direction. 

[An aside, to anticipate the inevitable pushback:  No, I am not asserting that these five Justices will, more than others, decide cases on purely “partisan” grounds (e.g., by asking themselves “Will it Benefit the GOP?”).  That overly simplistic account is (mostly) not the way these things work.  Indeed, I agree with Justice Kagan that the Justices' votes are not "simply an extension of the terribly polarized political process."  I assume they sincerely believe that their decisions do, in an important sense, reflect the better view of the law as they see it, at least in most cases (but perhaps not all—see, e.g., Janus).  Like most of us, however—and certainly like, say, the FDR appointees who dominated the Court beginning in 1937—their views of how the nation is best governed powerfully influence their views of how the Constitution and laws are best understood.  And, as it happens, there’s a stark contrast between the two parties these days on most important questions of governance, with virtually no overlap (i.e., the most conservative Democrat is not as conservative as the most liberal Republican, etc.).  Moreover—and here’s the important point—the Presidents and Senates who choose Supreme Court Justices can now be very confident about which jurists share their views about how the nation should be governed (by which I mean much more than “which party should win elections?”) and, more specifically, about how the Constitution and laws ought to be interpreted . . . and they choose their nominees accordingly.  Although I know others might differ on this score, I don’t think there’s anything necessarily unprincipled or nefarious about this—it’s simply that it’s become much easier for prevailing actors in the political branches to guarantee that the Justices they choose will share their own principles, especially about how best to interpret the law.]

The remarkable thing about this imminent conservative dominance on the Court is that, unlike the post-New-Deal Court, the new majority will likely accomplish all of this, and more, despite the absence of any sustained partisan electoral dominance by their party--indeed, in the midst of a long stretch in which we have, at most, a so-called “50/50 nation.”  (And that’s being generous to the GOP.)

Don’t get me wrong:  I am most surely not saying that the Court ought to abjure its important countermajoritarian function, let alone “follow th’ iliction returns.”  I’m simply pointing out that there’s been an extraordinarily stark and prolonged mismatch between (on the one hand) Democrats’ political power and the embrace of Democratic positions by strong majorities of the nation, and (on the other hand) Republican dominance on the Court—leading to a possible forthcoming ultra-conservative era of jurisprudence.  And that there’s a strong--and not coincidental--symbiosis between the Republicans’ long-term, successful efforts to shape the Court and the ability of the GOP to secure success in the political arena beyond what its popular support would naturally produce: the entrenchments are mutually reinforcing.

Of course, whether and to what extent you think this is a serious problem (a vicious circle, of sorts) likely depends on where you sit.  Feature/bug and all that.

* * * *

If I’m right about all this, it naturally raises two other important questions:  What are the causes of the phenomenon, of the radical disjuncture, and what (if anything) can and should we do about it?

As for the former, I don’t have anything especially incisive to add to what you probably already know.  I assume that the perpetual entrenchment is the result of the confluence of a whole host of things—a witch’s brew that includes at least the following: 

-- The indefensibly unrepresentative Senate, of course—something that (technically) could only be remedied by a constitutional revolution of sorts.

-- The related, and also indefensible, method of choosing the President based upon electoral votes, especially given that the electoral college itself is unjustly skewed by the “equal number of Senators” problem.  (This could be remedied by an interstate compact or constitutional amendment, but if there’s no powerful impulse among the electorate to make such changes now, even after 2000 and 2016, I doubt there ever will be.)

-- The fact that state legislatures are in charge of drawing federal districts and that they do so on the basis of baldly partisan considerations that are widely understood to be flatly impermissible in countless other constitutional contexts.

[These first three causes are, of course, serious defects in the Constitution itself—provisions that would never be adopted today if anyone were sitting down to draft a constitution for such a modern, complex state, but that easily withstand any changes because of steadfast resistance from countless officials and interests who benefit from well-established institutional “settlements.”]

-- The decisions of some Justices not to retire while Democrats are in the White House.

-- Numerous aspects of the Court’s own jurisprudence, often (but not always) by 5-4 votes (see the cases listed above).

-- Asymmetric Constitutional Hardball in which the Democrats have been, well, the political equivalent of the Washington Generals

-- Geographic segmentation.  See this acute observation from Mike Dorf (with his permission):  “For my money, both the baked-in countermajoritarian features of our system (especially the Senate) and the contingent ones (especially partisan gerrymandering in the House) do the damage they do chiefly because of the socio-political context in which we live. We happen to have the bad luck to live in a country in which the geographic distribution of social conservatives, racists, and tolerators of racism gives them disproportionate political power.  Worse, the institutional structures we have also give those people an effective veto over changing that disproportionate power.”

-- Perhaps Putin, and those in his employ and in his thrall, although I haven’t yet seen conclusive evidence that the Russian efforts (unlike, say, Comey’s indefensible actions) changed the outcome of the election.

-- Plain ol’ dumb, bad luck, sometimes taking the form of bad institutional design.

I’ll leave it to others to assess the relative importance of these and other sources of the “State of the Court” (and the Nation).  

Suffice it for me to offer but one prediction in this regard:  When our grandchildren look back fifty years from now, in 2068, they might well find that the three individuals who have had the greatest impact on the development of American law, including constitutional law, over the course of the Twenty-first Century, will turn out to have been Mitch McConnell, Jim Comey and Theresa LePore.

Finally, as for the all-important “So what can we do about it now?” question . . . well, my guess is as good as yours (at best!).  I hope my fellow bloggers, here at Balkinization and elsewhere, will weigh in with some (modestly) hopeful speculations for the future.  For starters, check out the "Way Forward" section of Jack's latest post.

Posted 4:31 PM by Marty Lederman [link]

The New Face of Men's Rights, by Jeet Heer

newrepublic.com

The New Face of Men’s Rights

By Jeet Heer

6-7 minutes

October 3, 2018

Trump and other Republicans say Brett Kavanaugh is being victimized by #MeToo—and they're expressing male solidarity in defending him.

The Trump men are very worried about the fate of their kind. Before he boarded Air Force One on Tuesday, President Donald Trump was asked by a reporter, “What do you say to young men in America?” He replied, “Well, I’d say that it’s a very scary time for young men in America when you can be guilty of something you may not be guilty of.” Asked if he had a message for young women, he said, “Women are doing great.”

Trump was echoing the words of his eldest son, who the previous day told an interviewer, “I’ve got boys and I’ve got girls and when I see what’s going on now, it’s scary for all things.” Asked if he feared more for his daughters or his sons, Trump Jr. said, “Right now, I’d say my sons.”

The context of these comments is the increasingly fraught nomination of Brett Kavanaugh for the Supreme Court. In addition to the multiple accusations of sexual assault against him, there are now other objections that are less severe, but perhaps enough to sink his bid. These include claims that he lied to or misled the Senate under oath, that he was not simply the studious scholar-athlete he portrayed himself to be, and that in defending himself in last week’s hearing he displayed an anger and partisan resentment unbecoming of a judge, let alone one aspiring for a seat in the highest court in the land.

In response, Republicans and other Kavanaugh supporters have recast their defense of him in broader terms. Not only has Kavanaugh been wronged, they argue, but his treatment by his opponents and the media shows how any man could be victimized in the age of #MeToo. The fight over the Supreme Court nominee’s confirmation thus has become a trial over masculinity itself.

This turn of events is consistent with the Republican Party’s own brand of identity politics of late, in which men, rather than women, are portrayed as the beleaguered gender in American society.

“The sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh have sparked a wave of unbridled anger and anxiety from many Republican men, who say they are in danger of being swept up by false accusers who are biased against them,” Philip Rucker and Robert Costa wrote in The Washington Post. “From President Trump to his namesake son to Sen. Lindsey O. Graham (R-S.C.), the howls of outrage crystallize a strong current of grievance within a party whose leadership is almost entirely white and overwhelmingly male—and which does not make a secret of its fear that demographic shifts and cultural convulsions could jeopardize its grip on power.”

Many of the right’s defenses of Kavanaugh are premised on the idea that, in his furious defiance, he is only doing what any man would do if falsely accused. “If I was traipsed in front of the Senate on bogus charges and forced to answer deeply personal and embarrassing questions about my high school antics, maybe out of embarrassment and anger I might be less than truthful,” Matt Walsh tweeted. In short: Wounded male pride justifies lying under oath.

When The New York Times reported that Kavanaugh, as an undergraduate at Yale, was involved in a bar fight, it provoked an “I am Spartacus” moment on Twitter where, as in the ending of the 1960 Stanley Kubrick film, a conservative throng emerged to express solidarity.

Tweet follows:

    Ive been in dozens of bar fights (ask the guys I grew up with) nearly lost an eye in one and that's just one of the injuries (I have the scarred stitch marks to prove the rest) never been black out drunk but I have had to defend myself, which I am still perfectly capable of doing https://t.co/VQSotGWW5g

    — Charles Gasparino (@CGasparino) October 2, 2018

Tweet follows:

    I don’t know one guy, including myself, who wasn’t in a bar fight.

    Not a single one.

    — John Cardillo (@johncardillo) October 2, 2018

This defense shows how easily identity-based expressions of solidarity can minimize misconduct. It’s a variation of the boys-will-boys excuse that is sometimes trotted out to dismiss sexual misconduct by teens and young men. It also obscures the specifics of the case. Few would argue that Kavanaugh’s bar fight alone is disqualifying for a Supreme Court nominee. Rather, the bar fight is important because it contradicts Kavanaugh’s characterization of himself as someone who drank occasionally and sometimes to excess, but was not a sloppy, belligerent drunk. Whether young men commonly get into bar fights is irrelevant to the issue of the nominee’s honesty about his past.

The most extreme version of this line of reasoning is that even if the accusations against Kavanaugh are true, they do not disqualify him from being confirmed to the Supreme Court. As writer Rod Dreher wrote on September 17, when the only sexual assault allegation then made public was by Christine Blasey Ford:

Tweet follows:

    I do not understand why the loutish drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge. By God’s grace (literally), I am not the same person I was at 17. This is a terrible standard to establish in public life.

    — Rod Dreher (@roddreher) September 17, 2018

Dreher is not alone in his position. An NPR/PBS NewsHour/Marist poll released on September 26 revealed that 54 percent of Republicans believed that Kavanaugh should be confirmed even Blasey Ford’s allegation is true.

By framing Kavanaugh’s nomination as not just a debate about the conduct and honesty of one man, but about men in general, Republicans have transformed a narrow question about a nominee’s fitness for the Supreme Court into a wider social referendum on gender equality and sexual misconduct in America today. #MeToo put these issues at the heart of the country’s politics, and now Republicans have twisted them for their own partisan ends. They’re trying to turn a women’s rights movement into a retrograde battle of the sexes.

Christine Blasey Ford, Brett Kavanaugh, and the day the laughter stopped for America’s privileged

Christine Blasey Ford, Brett Kavanaugh, and the day the laughter stopped for America’s privileged | Will Bunch
Posted: 15 hours ago
by Will Bunch
Will Bunch | @will_bunch | bunchw@phillynews.com
Christine Blasey Ford, Brett Kavanaugh, and the day the laughter stopped for America’s privileged | Will Bunch
SAUL LOEB / POOL PHOTO VIA AP




EMAIL

The laughter.

That's the most indelible memory that Dr. Christine Blasey Ford said she's kept bottled inside of her since a horrific summer evening in 1982 — the wild cackling of then-teenagers Mark Judge and Supreme Court nominee Brett Kavanaugh, chillingly described now by the 51-year-old research psychologist as "the boy who sexually assaulted me."

Today it's a safe bet that millions of Americans who spent an early autumn day riveted to the screen will never forget the moment she finally released the burden of that memory – under the blazing hot glare of TV lights and a Senate hearing room that Dr. Ford had so desperately wanted to avoid.

"Indelible in the hippocampus" — the brain's center for both memory and emotion "is the laughter, the uproarious laughter between the two, and their having fun at my expense," Dr. Ford said. That's how she described the worst moment of the incident in which she alleges that Kavanaugh – a federal appeals judge who stood on the brink of becoming the 114th Supreme Court justice – threw his full weight on her, tried drunkenly to remove her clothes, and covered her mouth when she tried to scream.



Judd Legum
✔
@JuddLegum
 The laughter

12:19 AM - Sep 28, 2018
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The laughter.

The emotional retelling of that moment by Dr. Ford – delivered with a remarkable, crisp clarity, even as her voice sometimes cracked and tears welled in her eyes as she brushed away a stray hair – was just one unforgettable moment in a day of drama that now will be inked indelibly in the pages of American history.

The unflinching directness of Dr. Ford's account – her "100 percent" certainty that it was Kavanaugh, along with his best friend Judge, who pulled her into a suburban Maryland bedroom and locked the door, her vivid description of the weight of Kavanaugh atop her body and how she struggled for air and thought she might die as the then 17-year-old covered her mouth – seemed to throw into doubt the once near-certainty of Kavanaugh's confirmation the longer she spoke.

Indeed, that looming reversal of fortune surely sparked Thursday's other hard-to-believe-this-is-really happening moment, Kavanaugh's loud, forceful — some might dare say belligerent — burn-it-all-down afternoon rebuttal, in which the 53-year-old jurist called both the confirmation process and the mounting allegations against him "a national disgrace."


POLITICO
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@politico
 · 19h
Replying to @politico
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POLITICO
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@politico
Kavanaugh held back tears as he denied sexually assaulting Ford, and then talked about his 10-year-old daughter praying for Ford.

"We mean no ill will.” https://politi.co/2DzXxt4  pic.twitter.com/DCfxYz86vq

4:39 AM - Sep 28, 2018

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Alternating between near-shouting and barely muted sobs as he described the impact the allegations have had on his family, an animated Kavanaugh sounded less like the calm witness who earlier this month promised to rule impartially like a baseball umpire and more like a Glenn Beck-style talk-radio host, calling himself a victim of "revenge on behalf of the Clintons." It wasn't clear whether Kavanaugh's clear attempt to appeal as a macho brawler to President Trump and his political base was enough to save his nomination. After nine grueling hours, the only thing that could be said with certainty is that there hasn't been this much crying in the public arena since Prince died.

People inside the hearing room and throngs that gathered in and around the Dirksen Senate Office Building on Capitol Hill reported that many wept as Dr. Ford told her story after admitting at the outset she was "terrified" to be there. President Trump is said to have watched the proceedings as he returned from New York City on Air Force One and – according to Vanity Fair's well-sourced Gabriel Sherman – was blindsided by Dr. Ford's credibility, only to be encouraged later in the day by Kavanaugh's angry rebuttal.

It was a day of emotional ping-pong and high stakes political poker. Hanging in the balance were the biggest dream of the conservative movement – a decidedly right-wing Supreme Court for the next generation, with huge consequences for everything from corporate power to women's reproductive rights – but also the fate of a predicted "blue wave" for the Democrats in November that could become a blue tsunami if white women continue to desert the Republican Party in droves.

But make no mistake: This was also a kind of cultural Pearl Harbor, a date — September 27, 2018 — which will live in infamy in the culture wars between a deeply entrenched patriarchy and a rising #MeToo movement of women telling their survivor stories of sexual abuse and harassment. That rising ride encouraged Dr. Ford to come forward with her long-repressed reckoning, and her courage in testifying on Thursday seemed to pay the #MeToo movement back with interest.

In the morning, everything that Republicans tried to do seemed to backfire, reinforcing the notion that the GOP is a, yes, a party for old men. It began with a cowardly decision to outsource the questioning of Dr. Ford to a female sex-crimes prosecutor from Arizona, Rachel Mitchell. Every time that committee chair, Sen. Charles Grassley, called out the name of a man – John Cornyn, Ben Sasse, Lindsey Graham, etc., etc. — yielding his time because they were so afraid of the political risks from questioning a woman, the moral stature of the Republican Party shrunk a little.

Clearly, Dr. Ford was not the only "terrified" person in the room, but unlike 11 Republican men, she showed the courage to fight through it.

Dr. Ford does lack corroborating evidence from 36 years ago – a point hammered home repeatedly by Kavanaugh's defenders – but her account held together in a way that made Mitchell's focus on peripheral matters, like whether Dr. Ford wasn't fully truthful when she mentioned a fear of flying in scheduling her testimony, look both silly and counterproductive.

But it was hard for the Arizona prosecutor or others to drill deep on the facts — not after a Republican White House blocked an FBI probe of either Dr. Ford's allegation or those of two other women who went public, not after GOP senators refused to subpoena Mark Judge to tell his version, and not after an unprecedented rush to vote Kavanaugh onto the court.

The rush to judgment – at least before the monkey wrench of Dr. Ford's testimony – betrayed what a growing number of Americans are seeing as the sociological subtext to the Kavanaugh fight: a last stand for an embattled regime of white male elite privilege, under assault from the #MeToo movement and other seismic cultural shifts.


Elaina Plott
✔
@elainaplott
 Outside the hearing, there are groups of women, huddled over phones streaming Dr. Ford’s testimony, crying.

11:44 PM - Sep 27, 2018
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The lengths to which Republicans seem determined to force Kavanaugh – the most unpopular Supreme Court nominee in modern polling, even before Dr. Ford and the others came forward – on the American people has left a bitter taste for many women, who only reached a new boiling point of anger Thursday as they watched Dr. Ford being put through the emotional ringer of telling her story in public. Sen. Graham gave away the privilege game when he raged to reporters about Dr. Ford's testimony, saying, "I feel ambushed in the majority."

The sexual divide is why Dr. Ford's recollection of the hysterical laughter by Kavanaugh and Judge cut so deeply. To laugh in the throes of such an act of violence and domination is the power play that undergirds the terrorism of such an act. Sexual assault isn't so much about sex as about power, and this is what many find so disturbing about the accusations against Kavanaugh; his second accuser, Yale classmate Deborah Ramirez, also said one of her most vivid recollections of the night she claims the future judge shoved his penis in her face was her assailant's laughter.

The laughter — a powerful thing that cuts many ways. No one knows that better than President Trump, who frequently voices his concern, or fear, that people are laughing at America or its leaders. This week, it was Trump who found himself on the defensive after other world leaders at the United Nations laughed at him and his boasts about his presidency. Laughter, in these circumstances, is all about respect. Even President Trump, in his own Trumpian way, gets that.

But so do America's women. It's the reason why Thursday's emotional but morally direct testimony by Dr. Ford was such a cultural touchstone for them. It's still quite possible that the male-dominated GOP majority in the Senate will take its refuge in Kavanaugh's high-volume anger – and not Dr. Ford's soft dignity – and place him on the Supreme Court, perhaps in a matter of a few days. But that won't protect these 11 men and their party from a firestorm of fury in November. America's angry women voters may still have the last laugh.

by Will Bunch
Posted: 15 hours ago
Will Bunch | @will_bunch | bunchw@phillynews.com