Power Grab

by Jason Chaffetz

  In the world of political narratives, these stories we tell help us decide who is right and who is wrong. The power of a good narrative is among the most potent tools in the political arsenal. In fiction, narratives help us determine which characters are the good guys and which ones are the bad guys. They help us take a side in a conflict, assign motives to the actors, and determine whether justice was done.

  Narratives can be true, false, or a matter of opinion. They help us make sense of our world, but as Hillary Clinton demonstrated, they can also be used to manipulate us. In the age of Donald Trump, the spinning of increasingly implausible narratives has gone into overdrive.

  Without congressional majorities, Democrats in the first two years of the Trump administration were limited in their ability to initiate the types of investigations that help build election-year narratives. But even in the minority, they demonstrated just how far they are willing to go to take down this president. Traditional norms no longer apply. The confirmation hearings of Justice Brett Kavanaugh were a window into the scorched-earth approach Democrats will take to tell the stories that protect their power.

  Democratic senator Dianne Feinstein of California, ranking member of the Senate Judiciary Committee, would be the Democratic lead in the confirmation hearings. To this point, Feinstein had been very outspoken about her principles when it comes to congressional oversight, posting to her website in 2009: “So amid all the quarreling and confusion, I say this: Let’s not prejudge or jump to conclusions. And let’s resist the temptation to stage a Washington spectacle, high in entertainment value, but low in fact-finding potential.”

  Unfortunately for Feinstein, the Kavanaugh hearings would pit her stated principles against her partisan interests. To disrupt the Kavanaugh nomination, Feinstein and her Democrat colleagues would have to cast off long-standing traditions and violate some of their own deeply held beliefs. They would do it. This confirmation hearing would be like nothing that had come before it. No one would contest that congressional hearings are inherently political. But this time Democrats would have to cross lines they had never crossed before.

  Having lost the presidency, Democrats in July 2017 were now facing a second existential threat as President Donald Trump would have the opportunity to replace retiring swing justice Anthony Kennedy. A qualified and energetic young conservative could occupy that seat for three decades. Having gambled and lost on the president’s first Supreme Court nominee, Neil Gorsuch, Democrats were now without the filibuster that would have given them the votes to block Kennedy’s replacement. They needed to do something drastic. They needed a narrative that would be disqualifying. Without a valid reason to reject the president’s nominee, they would have to create one.

  The Kavanaugh Spectacle

  The coordinated attempt to commit reputational murder for political gain is becoming a favorite trope of the left. The trope is effective, but only if people believe it. We should familiarize ourselves with the basic components of this screenplay, because we’ll be seeing a lot more of it now that House committee gavels are held by Democrats. If we are to push back against the false narratives, we have to be able to spot them quickly and expose them fully.

  That segment of the Democrat Party that is unmoored from truth is particularly adept at the smoke-and-mirrors game. Not being limited by the constraints of truth, these people project false narratives in hopes of producing short-term gains for their party, sometimes at the expense of third parties whose lives are never the same afterward.

  You can often distinguish the fictional narratives from legitimate ones by the extent to which they conform to a pattern. If a story is shaping up like it’s straight out of Hollywood, you know it’s probably fake.

  Conflict is accentuated, with clear markers indicating who is on the right side. Plotlines are sensational enough to capture attention. A boring character is imbued with fictional characteristics that cast him as a hero or a villain. Plot developments are timed just right to wow the audience.

  Stories like the Trump-Russia collusion narrative and the Brett Kavanaugh sexual assault narrative conveniently match the story arc that is most compelling to audiences, but do so at the expense of the truth. It’s easier than ever to dismiss truth and the rule of law when you’re in the grip of anti-Trump hysteria.

  The Kavanaugh hearings showcase that hysteria at its apex. Just as it had at my town hall meeting, the opposition followed a prepared playbook. It goes like this.

  The Media Machine: Democrat allies deliver a highly choreographed and coordinated rollout.

  Upping the Stakes: Senate Democrats open with attempts to tie the nomination to their ongoing collusion investigation.

  Stalling and Distraction: Democrats seek to obscure their specious narrative with pointless procedural posturing, followed by a race to amp up the drama.

  Moving the Goalposts: Once the narrative is finally exposed, there’s the age-old tactic of moving the goalposts at the finish line. It’s a high-stakes game of Calvinball.

  We saw many of these same elements as the Mueller investigation into Russian collusion drew to a conclusion. As long as the pattern provides short-term political gains, it doesn’t have to be true to be useful. The public provides those short-term gains when we uncritically accept the narratives being fed to us.

  The Media Machine

  The Kavanaugh narrative started with a plotline scripted long before the nominee was ever chosen.

  Under the direction of seasoned veteran senator Dianne Feinstein, Democrats planned to create a narrative that the nominee (whoever it was) would be unfit, unqualified, and unacceptable for the Supreme Court. If the public didn’t buy it, they would come up with some sort of dramatic disqualifying event from the person’s past that would cause most Americans to unite against the nominee. The clock would run out on the 2018 midterms, the Democrats would take the House and Senate in a landslide, and the Supreme Court seat would be held open until 2020, when a presumably Democratic president would nominate a liberal judge to the Court, saving mankind and restoring balance to the universe. For Democrats, that would have been the best-case scenario.

  In retrospect, the hearings did not turn out according to plan. Kavanaugh’s confirmation was not blocked, the narrative Democrats spun did not turn out to be credible, and at least one incumbent Senate Democrat believed the hearings cost the party her seat in the 2018 midterms. There were two problems: First, the nominee was miscast. Democrats were hoping for a radical extremist, a misogynist, or an inexperienced partisan. Kavanaugh was demonstrably none of those. Second, Democrats would inevitably do what people always do when not constrained by truth: overreach.

  On cue, the July 9, 2018, announcement of Kavanaugh’s nomination triggered the first scene of any Supreme Court battle. This is the part where the nominee is cast as an extremist. Despite characterizations of being the moderate pick among those on the short list, Kavanaugh was immediately demonized as a radical. Never mind that just two days before the July 9 nomination, the Hill newspaper reported that Kavanaugh was facing pushback from social conservatives for being too moderate. According to the reporting, he would likely need Democrat votes to get confirmed. An opinion piece appearing in the New York Times the day of the nomination even made a liberal’s case for Brett Kavanaugh.

  Undaunted by those facts, Senate Democrats and their allies pressed on with a script that sounded as though it had been designed with another nominee in mind. Senate Democrat Chuck Schumer of New York rolled out the strategy with a July 10 floor speech setting out all the talking points—that Kavanaugh was “way out of the mainstream,” believed “the president doesn’t need to follow the law,” and had a long paper trail that would require lots of time for review.

  The staging for this phase of the performance is well documented. A September 4 Politico story reported on a Democratic strategy session pitting the Senate Judiciary Committee’s “aggressive, often younger senators” against “veterans who prefer to adhere to the chamber’s n
orms.” Those norms would be not only challenged but in fact sacrificed in the days to come.

  Vermont senator Bernie Sanders tweeted (without evidence, as Democrats like to say), “President Trump’s Supreme Court nominee Brett Kavanaugh will be a rubber-stamp for an extreme, right-wing agenda pushed by corporations and billionaires. We must mobilize the American people to defeat Trump’s right-wing, reactionary nominee.” Connecticut’s Senator Chris Murphy chimed in to call Kavanaugh a “Second Amendment radical” who was “way out of the judicial mainstream” and “far to the right of even late Justice [Antonin] Scalia.” The hyperbole didn’t end there.

  Betting that most Americans were unaware of Kavanaugh’s mainstream record, the Senate’s outside allies were even more strident. Former Virginia governor and Hillary Clinton confidant Terry McAuliffe went so far as to make the outlandish claim that Kavanaugh’s nomination would “threaten the lives of millions of Americans”—a claim that would be uncritically repeated by many others, including student groups at Kavanaugh’s alma mater, Yale University.

  Not to be outdone, the Women’s March organization tweeted that Kavanaugh’s nomination was a “death sentence” for women. Incidentally, the Women’s March receives funding from none other than Planned Parenthood, in addition to dozens of other left-wing nonprofit groups.

  In a revealing slip, the Women’s March statement came with an introduction that read, “In response to Donald Trump’s nomination of XX [sic] to the Supreme Court of the United States, The Women’s March released the following statement . . .” Had they prepared the statement before they even knew the identity of the nominee? It sure looked that way. Just how coordinated was this rollout?

  In a case of foreshadowing, NARAL Pro Choice America (short for the National Abortion and Reproductive Rights Action League) appeared to get ahead of the script with a statement reading, “We’ll be DAMNED if we’re going to let five MEN—including some frat boy named Bret—strip us of our hard won bodily autonomy and reproductive rights.” Many people on the right focused on the hypocrisy of the fact that NARAL had no objection to Roe v. Wade originally being decided by an all-male Supreme Court. But the other interesting thing about this tweet is the reference to Kavanaugh as a “frat boy” with a frat boy name. That scene was slated for later in the show. How did NARAL already have the script?

  Upping the Stakes

  Having cast Kavanaugh as an extreme choice, Democrats next moved to connect him to their favorite narrative—the special counsel’s investigation into the Trump campaign’s alleged collusion with Russia. This messaging would deflect attention away from the challenging battleground of Kavanaugh’s unquestionably stellar judicial record and move back to the familiar territory of Russian collusion—a story line that had not yet lost its potency. At this point, they still believed with near-religious devotion that Mueller would ultimately indict the president. They were interested, not in determining whether Kavanaugh was qualified, but only in tying him to what they thought would become a slam-dunk case against the president. Democrats conflated accusations related to the president and his political team with reasons to question Kavanaugh’s fitness to serve on the Supreme Court.

  Judiciary Committee Democrat and presidential hopeful Cory Booker, of New Jersey, sent a series of tweets before the hearings began in which he attempted to float the constitutionally suspect idea that a president who has been merely accused of something nefarious should not be permitted to make Supreme Court appointments. He tweeted:

  The President of the United States was implicated in open court of a federal crime by his longtime personal lawyer. It’s increasingly urgent we stop Trump’s handpicked Supreme Court nominee Kavanaugh from getting a lifetime appointment to the highest court in our land.

  Booker repeated the argument less than two hours later, trying again to sell the idea that allegations against a president were sufficient reason to keep him from doing his constitutional duty. Booker tweeted:

  A president who is named by his longtime personal lawyer as an un-indicted co-conspirator should not be nominating Supreme Court judges for lifetime appointments.

  On the opening day of Kavanaugh’s testimony, Judiciary Committee Democrat and presidential hopeful Amy Klobuchar continued trying to tie Kavanaugh to the Mueller investigation in her opening statement, saying that Democrats’ duty in these hearings was to figure out whether Kavanaugh viewed the president as above the law and to delve into his view of “laws protecting the special counsel.” Once again, it was all about the Russia story.

  A comparison of former senator Sessions’s statement at the Sonia Sotomayor confirmation hearing in 2009 with Feinstein’s statement at the Kavanaugh hearing shows just how politicized this latter hearing had become. Sessions criticized Sotomayor but based his criticism on the nominee’s record and views pertinent to her role as a Supreme Court justice. By contrast, Senator Feinstein’s statement at Justice Kavanaugh’s confirmation hearing lists a series of criticisms of President Trump.

  Stalling and Distraction

  Having established the narrative, the Democrats now merely have to distract the public from looking too closely. Believe it or not, the boring function of requesting documents can be weaponized to create quite a distraction. Document requests can be written in such a way that they build narratives that manipulate public opinion and contribute to the pointless circus surrounding false narratives. This tactic wasn’t unique to the Kavanaugh hearings, but the hearings are a textbook example of how the play is run. Pay close attention to how this particular tactic is deployed. As long as we have a Republican president in the White House, they’ll run this play again and again.

  The trick with this gambit is making the public believe Senate Democrats actually cared about reviewing hundreds of thousands of pages of documents on a nominee many had already pledged to oppose. The narrative depended on projecting a sincere desire to vet the man’s record, when the reality was a covert desire to delay the confirmation hearings.

  The first step is the submission of a document request sufficiently broad that it will prove impossible to fill in any reasonable amount of time. The intent is not to review the resulting documents, but to rail about documents that are missing. If the document request is not broad enough, they run the risk of actually getting all the documents. Then they would have nothing to complain about.

  In the case of Kavanaugh, Democrats wanted every document Kavanaugh had touched during his time as a White House staffer for the George W. Bush administration. In an unprecedented move, Chairman Charles Grassley, Republican of Iowa, told the committee that Senator Feinstein demanded “the search of every email and every other document from every one of the hundreds of White House aides who came and went during the entire eight years of the Bush Administration.”

  These documents would be difficult to get and of little value. Feinstein would have known many of these documents would be protected by executive privilege. All the better.

  According to comments from Republican senator John Cornyn of Texas during the hearings, every single Democrat on the Senate Judiciary Committee had announced opposition to Kavanaugh before the very first hearing. Their minds were made up. No volume of documents was going to change them. It was all a sham.

  By demanding an impossibly broad series of documents they knew would be both difficult to get and of little value, they had a pretext to do what they likely would have done anyway—refuse to meet with the nominee, a move that might conveniently also delay the hearings. Many of them did refuse, waiting until the cameras were on to ask Kavanaugh simple questions that a genuine seeker of facts could have ascertained long before the hearings.

  Senate minority leader Chuck Schumer continued framing the Democrat narrative, gaslighting the public into thinking Kavanaugh was hiding his record.

  In August, Schumer tweeted:

  Republicans’ mad rush to hold this hearing after unilaterally deciding to block nearly all of Judge Kavanaugh’s records from public relea
se is further evidence that they are hiding important information from the American people, and continues to raise the question, #WhatAreTheyHiding?

  In a subsequent tweet, he wrote:

  Republican efforts to make this the least transparent, most secretive Supreme Court nomination in history continue. They seem to be more frightened of this nominee’s record and history than any we’ve ever considered.

  In reality, more documents were produced on Judge Kavanaugh’s record than on any of the previous nominees’. Over a two-month period, Democrats had access to the following documents:

  An 18,000-page response to the committee’s Senate Judiciary Questionnaire (SJQ)

  All of Kavanaugh’s published writings

  307 judicial opinions Kavanaugh wrote

  Hundreds of opinions Kavanaugh joined

  All available footage and transcripts of Kavanaugh’s public appearances

  All books that used him as a resource

  More than 500,000 pages of documents related to his past legal service in the executive branch

  One-on-one meetings with Kavanaugh (65 senators took advantage of the opportunity).

  Subsequently, senators heard thirty-two hours of testimony from Kavanaugh, then received responses to 1,300 post-hearing written questions. A memo from Senate Judiciary Committee Republicans notes this was “more questions than have been asked of all prior Supreme Court nominees combined.”