The Strange Non-Death of a Supreme Court Nomination

The night of October 5th was a vigil of sorts as the US awaited word of Judge Kavanaugh’s confirmation. The week had witnessed unusually hectic dramas of participatory democracy, wild fits of hope, anger and fear, though all were shadowed by a grim sense of the inevitable. And after all the restlessness, the Senate’s vote on Saturday seemed the confirmation of a foregone conclusion. A formality, we might call this last stage in the process, if, by the word we meant to evoke a doctor short of beds in a terminal ward, urging his patient to “get on with the formality.”

If something died that night, it was anything – everything – but Brett Kavanaugh’s candidacy. And yet, in his construal of things, he had suffered grievous harm. Perhaps the most interesting moment in Kavanaugh’s statement at the sexual assault hearing was the claim that his reputation had been “totally and permanently destroyed.” The assertion was somewhat paradoxical, as his spluttering verbal rampage proved to the incredulous that a surplus demolition was indeed possible. Autopsies of the event have rightly underscored the shocking way the man’s boorish, ill-tempered and overtly partisan outbursts were quickly framed as suitable for a Supreme Court justice. And as the man’s image descended to new lows with more allegations of misconduct over the following week, commentators marvelled that his reputation, totally destroyed, then destroyed some more, had not finally collapsed. But this is perhaps to miss the point.


Black drapery on Justice Scalia’s empty seat, Feb. 2016 (AP/J.Scott Applewhite)

In his 2011 book The Strange Non-Death of Neoliberalism, Colin Crouch tackles the reigning conundrum of our times: how can it be that, after its near-collapse 2008, the finance-based economy neither died nor even underwent significant reforms? The simple answer, of course, is that the banks were “too big to fail” and that government bailouts were, as a result, an unarguable necessity. But in requiring public funds to repair the damage they had wrought, the banks had contravened a cardinal rule of neoliberal economics, whose ideology is based on the premise of a naturally wise, self-managing independent market and its luckless corollary, a downsized, tax-starved, near-irrelevant government. In short, neoliberalism suffered a fatal blow in 2008, and yet it still persists today, as if surviving its own death.

There is every reason to believe that economic “theories” are just mathematical rationalizations of interested parties. One might, then, chalk up the peculiar “non-death” of neoliberalism to cynical opportunists somewhat inconvenienced by a flaw in their cover story. But the fact remains that banks in the wake of the 2008 crisis were fully exposed to the public as incompetent, sociopathic, devious, manipulative, predatory and cruel. To borrow a winning phrase, their reputations were “totally destroyed.” In spite of this hit to their collective image, the financiers were, and continue to be, richly rewarded.

Surviving his destroyed reputation, Kavanaugh is akin to the big bankers in more than one way. His victory in spite of his disgrace signals to an outraged public that there are inevitabilities democracy is powerless to stop. His snarling, righteous impunity signals the ascendency of an amoral ruling class, the embodiment, like Trump, of an amoral marketplace unmoored from regulations and careless of social norms and values when not actively promoting their decline.

It is often pointed out that Kavanaugh may occupy his bench for a generation – twenty-five years or more. Pause a moment to consider that twenty-five years is not only a long time, it takes us into a probably quite different time. If the past zombie years are any indication, that time will be one of vast inequalities, poor if not absent social services and potentially drastic insecurity caused by ecological collapse and climate mayhem. Social disorder is likely to breed resistance, and laws will be needed to prop up an unjust, discredited system. Here Kavanaugh’s own personal descredit will hardly be a disadvantage. Quite the contrary; Kavanaugh, with his mortally-damaged reputation, is ideally positioned to preside over laws and a justice system that will demand our fear and obedience, but require no credence or respect.

The triumph of Brett Kavanaugh is a clear victory of misogyny and white nativism. On a broader level, however, it is a victory of amorality. David Sirota is right to emphasize how the class of people Kavanaugh represents enjoy legal “immunity.” Standing above and outside the reach of the law, the realm of immunity serves as a shining example of desirable privilege for the aspiring few. But as an expression of the neoliberal market, amorality has an even broader and more corrosive reach. It undercuts in a fundamental way the normative standards of community. Indeed, it revels in the destruction of social bonds. This marketplace ideology now has its figurehead in the Supreme Court.

See Colin Crouch, The Strange Non-Death of Neoliberalism (Cambridge: Polity, 2011).



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