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Sabotaging Advice and Consent

As the Brett Kavanaugh Supreme Court nomination hangs on a precarious edge, Republicans have attacked the way some Senate Democrats and the nation’s free press acted in the past two weeks. One of my favorite Montana Republicans, Tammi Fisher, a former prosecutor in Kalispell, has a good essay up in the Flathead Beacon about due process being abandoned in the hearings. She makes an argument based on a Constitutional premise and I would like to make one on a different premise as a counterpoint to the way she and others have characterized this nomination.

Enshrined in the Constitution is the power of senators to provide “advice and consent” for treaties, federal appointments, and Supreme Court justices. It does not outline how senators are to carry out those duties, whether it is under the rules of civil procedure, criminal procedure, or kangaroo courts. That is because the process in front of the senate is not a court hearing, even if it is in front of the Senate Judiciary Committee pertaining to a federal judge. It is a job interview. I know this point angers a lot of Republicans, most of those on the aforementioned judiciary committee, but that is what this nation watches as Kavanaugh auctions for this important job: does he have the experience, temperament, and ethics to handle a lifetime appointment to the highest court in the land.

Anymore, after presidents and public relations firms get ahold of Supreme Court nominees, their past rulings and behavior go into a misty cloud of vague, non-commital answers and an image campaign worthy of a Hollywood roll-out. During hearings before the senate, no one gets the answers they want and the senators of the party in power do little to nothing to question their emperor’s nominee. This played out in full during the initial Kavanaugh hearings, where hundreds of thousands of pages of his opinions and analysis over the past decades never saw the light of day and the White House kept numerous senators, to include our own Jon Tester, from questioning the judge. This is not allowing for advice or consent, it is a subterfuge meant to instill some dark presence on the court. If you are not asking for a pause in this nomination or outright calling it a sham then you are complicit in the conspiracy.

Following Kavanaugh’s routine three days of questioning, Senator Diane Feinstein went public with confidential concerns she had heard from someone who knew Kavanaugh in the past. This woman, who we now all know as Christine Blasey Ford, had spoken with a member of Congress about Kavanaugh attempting to rape her in 1982 when they were in high school. But more importantly, Ford also had earlier, before even the initial Kavanaugh hearings started, told her story in meticulous detail–to include historical notes from her therapist–to the Washington Post because she feared his nomination due to his brutal and unrestrained conduct. She said, “I thought he might inadvertently kill me.”

And because there is never just one allegation when it comes to powerful entitled white men who get away with sexual assault, we spent the next several days in a complete maelstrom of women (and men) coming forward with tales about his partying and deeply depraved sexual exploits. Yes, these are allegations, though some of them are in sworn affidavits, and Kavanaugh is facing accusations of criminal event and those allegations are for the courts to decide. Right now, however, we are faced with a decision to put a man with a lifetime appointment to the Supreme Court with these allegations in the air.

The due process believers think he can still go on the nation’s highest court and the process will play out, over years, and who knows what happens at the end. This is an antiquated idea. We do not move at the same pace of the founders’ nation, we now move at a rapid and dizzying pace based on the media cycle and the desire of some parties to solidify power while they have its mantle–see: McConnell, Mitch. Based on the multiple credible allegations against this man, he is no longer qualified to be a Supreme Court justice let alone a federal judge. Full stop.

This is not a “smear campaign” against an “honorable man,” as Senator Steve Daines and senate hopeful (oh, so hopeful, it’s so pathetically cute!) Matt Rosendale. Think about that. They are calling the allegations of sexual assault against this wealthy and empowered white man a “smear campaign.” I did investigations into awful, awful cases of sexual harassment for the past four and a half years. There were Montana women. Never, ever, did I take a position of not believing or dressing them down for what they had to say. The amount of women making spurious allegations is about as close to zero as you can get. And if they have notes or if multiple women are suddenly coming forward, then there is smoke around that burning dumpster fire. You know what a good human resources manager does when these sorts of allegations happen in the workplace? They stop everything and interview everyone involved. If there is any corroboration of an individual complaint or signs of a pattern to behavior, employees and managers are separated or terminated. It is not a legal process, it is a process to create a safe workplace. The senators and the nation are not judges or lawyers right now, we are human resources managers looking at who we hire onto our court.

If you have not seen the hearing where Kavanaugh completely undermines his approach as a neutral judge by accusing one side of the aisle of partisan games, you should. If you have not seen the hearing where Kavanaugh contradicts and undermines his story multiple times while under oath, you should. If you have not seen the hearing where Kavanaugh comes off as unhinged, angry, drunk, entitled, and guilty of all the crimes against him, you should. Seriously, if you have not seen it, watch it. It is a remarkable and prescient moment in American history.

No, none of this is proof or due process. It is a fair hearing in the public arena for a man who wants one of the highest and most important jobs in the United States. It is the Constitutional duty of senators to advise and consent to the choices based on Kavanaugh’s performance before them. Kavanaugh has failed, epically. Daines and Rosendale have failed, epically. The senators standing against the nomination based on what they have seen are fulfilling the duties our founders wanted. In joining them, Tester has shown up, again, to advise this state against a dark conspiracy and to not consent to letting it happen. He is a hero and a true leader.

And circling back to due process, the nomination is on hold for a week while the FBI investigates these allegations. But the Trump White House, which backed the nomination and loses a lot of political coin if the allegations are borne-out, has limited the scope of said investigation to what it wants looked into. I have yet to hear a conservative or libertarian who decries government overreach and corruption of power make a statement about this scheme straight out of an authoritarian nightmare (the nightmare we are now living).

Everyone who abets this corrupt process is complicit in the conspiracy. It is a conspiracy to completely undermine American democracy and they do not get to hide behind the Constitution and flag while they do it. It is time for all of us, regardless of party, to take these symbols back that reflect the bedrock of American democracy. There is no more important day than November 6, 2018 and the 30 plus days from now until then. Our future depends on these next several weeks and our future depends on making everyone who put Kavanaugh onto the Supreme Court–it is going to happen–pay for their crimes against the Constitution.

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Josh Manning

Josh Manning is a combat veteran who lives in Helena. His writing has appeared in the Los Angeles Time and Newsweek and he has appeared on MSNBC and CNN. He was a primary researcher to the recently published New York Times bestseller "The Plot to Destroy Democracy" by MSNBC analyst Malcolm Nance. You can follow him on Twitter @joshuamanning23

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