We don’t yet know how Supreme Court nominee Brett Kavanaugh’s confirmation process will end, but two women getting in Arizona Senate Jeff Flake’s face may ultimately prove to have had a historic impact on the future of the Court.
“Look at me when I’m talking to you,” Maria Gallagher, a 23-year-old activist from New York, told a cowed Flake as he stood, his head bowed, in a Senate elevator. “You’re telling me my assault doesn’t matter. You’re letting people who do these things into power. That’s what you’re telling me when you vote for him. Don’t look away from me!”
Shortly after, Flake surprised everyone by demanding a weeklong halt in Kavanaugh’s confirmation to let the FBI investigate his accusers’ claims. He told reporters that his confrontation with Gallagher and Ana Maria Archila, the co-executive director of the Center for Popular Democracy, didn’t sway his decision to throw a wrench into the works. But depending on how cynical you are, it’s pretty clear that he was either moved at least in part by the passion of the activists, or by the viral impact of the video itself.
It was easy to connect the video to a series of other incidents of citizens confronting public officials with visceral expressions of outrage over what’s happening in this country directly and unavoidably in public spaces across the Washington, DC, area. Five days earlier Senator Ted Cruz was hounded from a fancy restaurant by protesters yelling, “We believe survivors!” White House spokesperson Sarah Huckabee Sanders, Trump adviser Stephen Miller, and Homeland Security Secretary Kirstjen Nielsen have all faced the wrath of activists while trying to enjoy a nice meal.
The utility and appropriateness of these tactics have become entangled in a larger debate over the importance of maintaining civil discourse—despite the fact that Trump and his party have been blowing up other long-standing political norms with a vengeance.
Condemning this kind of direct action is almost a prerequisite for those wishing to be seen as sober, serious commenters. After the confrontations with Sanders, Miller, and Nielsen, the Washington Post editorial board wrote that, regardless of their complicity in ripping apart families at the border, government officials “should be allowed to eat dinner in peace.”
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If we’re talking about ordinary citizens, even activists, I generally agree. Americans are a messy, highly polarized polity, and people should be able to eat a meal in peace without being punished for their political views. And as a practical matter, these tactics certainly play into the right’s pervasive victimization narrative.
But when it comes to politicians and their staff, the crucial context is that we’re facing a crisis of elite impunity. Look no further than the White House, where Donald Trump sits in the Oval Office despite facing over a dozen allegations of sexual harassment or abuse and having refused to release his taxes or divest his sprawling business interests.
Hyper-partisanship has similarly shielded other politicians in both parties. Representative Duncan Hunter (R-CA) and Texas Attorney General Ken Paxton are both running under multiple federal indictments—Hunter for defrauding his donors, and Paxton for securities fraud and related charges—and both are currently leading their opponents. Michael Barajas reported for The Texas Observer that “Team Paxton’s biggest coup, according to prosecutors, has been defunding and derailing the case for years.” Senator Bob Menendez (D-NJ) is leading his race as well after his corruption case ended in a mistrial. Legal experts say prosecutors declined to retry the senator in large part because the Supreme Court has consistently narrowed the definition of public corruption in recent years, most prominently when they overturned former Virginia governor Robert F. McDonnell’s conviction for what had previously been a crime in 2016. Representative Jim Jordan (R-OH) has a good shot at becoming the Republicans’ next leader in the House, despite allegations that he turned a blind eye to sexual abuse when he was an assistant wrestling coach at Ohio State University in the 1980s.
The emerging consensus on the right is that Brett Kavanaugh should be given a lifetime gig deciding the validity of democratically enacted laws unless it can be proven beyond a reasonable doubt that he attempted to rape someone. Never mind that he appears to have repeatedly lied to Congress, a felony, or that the American Bar Association had “raised red flags about ‘his professional experience and the question of his freedom from bias and open-mindedness’” when he was first nominated to become a federal judge 12 years ago, according to The Washington Post.
It’s a stark example of the infuriating breakdown in democratic accountability we’re facing as a nation. Brett Kavanaugh is vying to become the fourth Supreme Court Justice to be appointed by a president who came into office despite losing the popular vote. If he’s confirmed on a party-line vote, Senators representing 44 percent of the population will have prevailed over those representing 56 percent (depending on how you do the math, the picture can look even worse). In the House, voter suppression and what the Brennan Center for Justice calls “extreme gerrymandering” means Democrats have to win by a significant margin in November to gain just a bare majority of seats. At the time of this writing, Democrats enjoy an eight-point lead in the congressional generic ballot, yet FiveThirtyEight’s projection model gives Republicans a one-in-four chance of maintaining their control of the chamber.
Democrats are also facing concerted efforts to suppress the vote. “States are kicking a growing number of voters off their rolls in the wake of a 2013 Supreme Court decision that invalidated a key part of the Voting Rights Act,” according to Vox. The Brennan Center for Justice notes that purging inactive voters is necessary, but in many cases, “Officials strike voters from the rolls through a process that is shrouded in secrecy, prone to error, and vulnerable to manipulation.” Since that Supreme Court ruling that gutted the Voting Rights Act, federal actions to protect the minority voting rights have dropped sharply, according to the US Commission on Civil Rights. A 2016 study by researchers at UC San Diego found that strict voter-ID laws decrease Democratic turnout by 8.8 percentage points and Republican turnout by just 3.6 points.
This would all be intolerable in a democratic republic if the stakes were much lower than they are. But we’re not talking about differences in marginal tax rates; we’re litigating whether the United States will remain a pluralistic, multicultural country where no person is above the law.
Millions of Americans are justifiably outraged by what they see in the news virtually every day of the Trump era. The vast majority of them are expressing that through traditional political activism. They’re registering voters and canvassing and donating to politicians—Act Blue, the online fund-raising site, raised almost $36 million in the month of August alone. But increasingly, they feel that’s not enough—and understandably so. If elected officials keep finding ways to insulate themselves from the wrath of their constituents at the ballot box, they can’t be surprised to find themselves hounded in public.
