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Why did Democrats not push the fight to the America against Kavanaugh’s appointment? What do we face in the future? What should be our response? Current Affairs politics editor Briahna Joy Gray makes some suggestions

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MARC STEINER: Welcome to The Real News Network. I’m Marc Steiner. Great to have you back with us.

Here we go. Judge Brett Kavanaugh, as we all know, is on his way to the Supreme Court. If Alaska’s Republican Senator Murkowski had voted no instead of present, and West Virginia Democrat Senator Manchin had voted no instead of yes, then Kavanaugh would not be sitting on the Supreme Court. Even if that had happened, Mitch McConnell would be bullying his way through to find somebody equally as conservative by now. He said about Obama’s attempt to appoint Merrick Garland to the Supreme Court during the last months of Obama’s presidency, here’s the quote: “One of my proudest moments was when I looked at Barack Obama in the eye, and I said, ‘Mr. President, you will not fill this Supreme Court vacancy.’” He strutted along as he blocked Garland, along with dozens of other of Obama’s judicial appointments.

This confirmation of Brett Kavanaugh is their biggest win yet; and they, the Republicans, are now stacking the courts with right-wing conservative jurists. Abortion rights, voting rights, our environment, reforming criminal justice, are all under threat. The wealthy capitalists will be no longer held at bay. They will soon be able to control the whole body politic with these judicial appointments and ones like them. So what is the response we need from a majority of Americans who are oppose this to this disaster which could affect generations to come? What should we be expecting from Democrats? We’ll begin to explore that question today with our next guest, Brianha Joy Gray, who is senior politics editor for the Intercept, and contributing editor at Current Affairs. And welcome to The Real News, Brianha, great to have you with us.

BRIAHNA JOY GRAY: Thank you for having me.

MARC STEINER: So, Briahna, to start, I want to play this clip for you and everybody else watching from Joy-Ann Reid’s show on MSNBC last Sunday. It’s Elie Mystal, editor of Above the Law, speaking about Democrats and their response, or lack thereof, to packing the courts. Check this out.

ELIE MYSTAL: I have heard people on this network, since Susan Collins did her Laertes thing, saying, well, we can’t impeach Kavanaugh, because we were not going to get- I don’t care. I want him impeached- if Democrats take back the House, I want impeachment trials by Martin Luther King Day. To quote one of my favorite movies, Remember the Titans, I want the Democrats to blitz every down, all right, because that’s what the Republicans do. The Republicans do not fold, they fight. They fight when they win, they fight when they’re going to lose, they fight when the odds are in their favor or not. They fight. And it’s time for the Democrats to finally show that same fight about these issues. Because if they don’t, it’s a generation, it’s a generational change in terms of the rights of women, the rights of gays, and the rights of minorities.

MARC STEINER: Well, Briahna, what do you think of what Elie Mystal had to say?

BRIAHNA JOY GRAY: I think I’m team Elie Mystal. I want to say right on, brother, right on, because you know, I think it was extraordinarily dispiriting to see on Friday, immediately after the votes came in, all of the Democrats of note, all of the 2020 hopefuls and members of the Senate Judiciary Committee immediately tweet their kind of, you know, well, we fought the good fight tweet. What was extraordinary to me is that in contrast that kind of feeling of complacency, or that they’ve done everything they could have done, the response on Twitter and from protesters on the ground was the exact opposite. You know, I was kind of amazed by the fact that I tweeted a simple suggestion- what I thought was a pretty apparent, an obvious suggestion of what the Democrats could be doing to reframe the conversation and set up, and tee up the issues in a way that would be most compelling for midterms. And it went viral overnight. But a simple suggestion-

MARC STEINER: What was the tweet, which tweet was that?

BRIAHNA JOY GRAY: It was a thread that ended up getting turned into a story on Common Dreams. But I basically suggested that on Friday, while all the news stations were tuned into the Senate votes, like everybody going one by one to the podium and giving their rationale for why they voted the way they did, Democrats should have teed up all of the evidence, all of the witnesses that were not investigated by the FBI- Ms. Ramirez, for example, said there were something like 20 people that she suggested to the FBI should talk to, none of whom were actually questioned. Not to mention Ford and Kavanaugh not being questioned.

But the Republicans were smart insofar as they turned all of the evidence that’s out there into what seems like a more evidentiary form. They got people to sign affidavits testifying to the facts that- the Devil’s Triangle, for instance, was a drinking game. But they weren’t able to buy an affidavit saying, for example, that Renata referred to a harmless, you know, allusion to a friendship, instead of what it really was, which was kind of making a jab at this woman’s presumed- or this young girl at the time- presumed promiscuity.

And I think the absence of affidavits there suggested the Democrats could have gotten affidavits to the contrary, and lined up all of their evidence and had that playing concurrently with the Senate hearing, and actually undermine Collins’ claim, for instance, that it was more likely than not- that it wasn’t more likely than not that Kavanaugh actually committed this attack. And kind of undermining that claim that this is a witch hunt by putting the evidence in people’s faces; evidence about Ramirez; the the priest, or rather the theologian at Princeton who says that he remembers being told about the story, the Ramirez story, contemporaneously. All of these facts have never been marshaled into one place and offered as an alternative to this FBI document that’s still shrouded in secrecy. Democrats can claim transparency and use the media to their advantage. Instead they simply kind of slunk away and said, oh well, there’s nothing we can do.

MARC STEINER: So that’s interesting. I’m curious- let’s say for argument’s sake that you were sitting in the U.S. Congress, or that you were actually Speaker of the House, or at least the majority leader. Minority leader, I should say. So what should have been the concerted response? What would have been the collective response that you would have led if you were there? I mean when you say- because when these things are there, you know, like- there are years now of testimony that apparently are lies that he told that no one is pulling up, and no one’s pushing. And all the things you just outlined, as well. So strategically, how do you get to the heart, gut, and mind of Americans about what really took place here?

BRIAHNA JOY GRAY: So first and foremost, I think that the Democrats dropped the ball during the hearing by not considering how to best use the format, which was these five minute intervals they had to question Kavanaugh to their best interest. So all the prosecutors that are up there should have understood that Kavanaugh could win by prevaricating until the time is up, unless they agree to pick up that line of questioning when the next person’s turn came around. So part of it was that they let a lot of issues drop, for example the Ramirez issue, in the course of the hearing. And now it feels more and more like it’s kind of being brought up because other arguments have failed, kind of opportunistically, when they should have driven these things throughout.

Additionally, when it became clear that the FBI investigation was going to be a fraud, which became clear very soon, Democrats should have started to put together their own investigation. Hired, you know, former FBI, or other kinds of factfinders that could have the appearance of impartiality, to put together a competing document which would have exerted pressure on Republicans to make their document public, right, to rebut some of these claims. Because there’s never been an aggregation of testimony and evidence the same way that there has been on the right, but the evidence on the right is shrouded in secrecy.

And third, I think it’s important to push the perjury stuff hard. Bernie Sanders has been someone who has been vocal about this. He tweeted out, and also read out loud on Friday night to the Senate, his kind of talking points from a letter that basically outlined what he felt, it seems like, what he feels are the biggest lies, the most easy to prove points of perjury. And I think that keeping the perjury investigation alive is a good way to keep both the kind of lack of integrity of the right front and center, and the fact that they would push this candidate through who has all these open questions about sexual assault. But also these bigger issues about the integrity of the judiciary, which Murkowski actually brought to the fore in her statements on Friday night, when she was the only person who actually went back to what the judiciary standards set by the Senate actually are, which say that, you know, a judge should act in a way that basically creates a kind of public buy-in to the integrity of the institution; it acts in the best interest of the public concern, and isn’t partisan and impartial. And no one who saw his testimony last Thursday could possibly think that he, his behavior has been in line with those rules.

MARC STEINER: So very quickly, I’m curious why you think the Democrats, the leadership especially we’re talking about here, they don’t, A, have a sense of theater. They have no- they have no kind of coordinated attack. And clearly the people in the right have a coordinated attack that they plan to do together very concretely. They’re very concered about what they do and how they do it. And also how to kind of really push in in terms of the media, and how to use the media to tell the story so the American people understand. Because the majority of American people don’t want this man on the Supreme Court. So what is it, you think, that’s holding them back?

BRIAHNA JOY GRAY: Why is the Democratic leadership bad at their jobs. That’s an interesting question. Look, I can’t speak to what their motives are, obviously. It might just be that these happen not to be their strength. But I think part of what’s going on here is that Democrats persistently misidentify what’s important to the American people. Because we have ethics and what’s right on our side persistently, and are unable to communicate how our interests are aligned with the broader American interests in a satisfactory manner at all.

So for instance, the predominant message coming out of the left is believe women. This is laudable, for obvious reasons. We all understand the extent to which sexual assaults are grossly underreported, underprosecuted. And you know, it’s a it’s a crisis that has been exposed in brilliant fashion by the Me Too movement. However, it is also true that that message doesn’t do very well against the Republican message, which is that this is a witch hunt and we can’t prove anything about what happened 36 years ago.

It is difficult to prove conclusively what happened 36 years ago. And so we can keep having an argument about what due process constitutes and what the burden of proof should be, which I think is a useful argument which I have been engaging in. But there’s a different argument to be made here, which is that, Me Too stuff aside, Brett Kavanaugh is bad for the American people on class issues. This has been an a whole concept of class warfare. Donald Trump defended Brett Kavanaugh on the basis that he went to Yale and lived a “perfect life.” This is a man who has decided cases that have paved the way for the Janus decision, who is pro-Citizens United, who is anti-labor and pro-big corporations.

And that is the message that translates very well to the American people. And what a recent Demos study from earlier this year shows is exactly the kind of thing that animates so-called persuadable voters. Voters that sometimes vote in favor of liberal policies, sometimes in favor of conservative policies. What people respond to is the idea that the 1 percent is using and weaponizing race and gender and identity issues in order to get what they want to get done, to preserve the status quo, to preserve wealth and resources for themselves. And when you look at the facts of Kavanaugh’s relationship with the Bush family, Bush whipping votes for Kavanaugh, Donald Trump’s personal interest in having Kavanaugh on because of his decisions, making his decisions and his statements with respect to separation of powers, and end up protecting him should Trump come under the microscope legally, as everybody expects, then you start to put together a picture of this is about the elite versus the 99 percent. And you only have to look at the popularity of Bernie Sanders to this day to understand that that is a message that resonates.

Now, why the Democratic establishment might not want to push that message? Well, it might be that that certain members of the Democratic establishment are similarly aligned with the elites, and are uncomfortable making those kinds of broad-based class arguments.

MARC STEINER: So two very quick things here I want to get to before we conclude. One has to do with, given the stacking of the courts for the right, given what we’ve just seen on the Supreme Court, and what I said at the opening of the program, this could affect generations to come. The next 30, 40, 50 years could be affected by this. I mean, we saw in the Warren court in the ’50s the power it had to begin to transform America. Part of that push for the civil rights movement and more, what it did from the ’40s until the ’70s. It had a huge effect on who we are as a people and where our nation was going. This could do just the opposite. Do the same, but in the opposite direction, taking us backwards. You know, people look at our history and say 1877, when they killed Reconstruction, couldn’t happen again. Well, I’m not so sanguine about that. I think we’re facing a real real danger here that people need to be aware of.

BRIAHNA JOY GRAY: I think that’s right. I mean, I’ve heard a lot of conversations about, you know, whether it’s savvy to push for impeachment in light of midterms, and, you know, whether or not it’s going to negatively affect Democrats’ chances. I mean, that’s an extraordinarily short-sighted way to look at this. I think that part of what the Republicans argue is that we pick up issues opportunistically, and I think that there can be no better confirmation of that than to let an issue as weighty, with as long-term importance and consequences as this one, die simply based on a calculation about midterms, as opposed to the reality which you just astutely articulated, which is that the implications and consequences of this are decades in the making, or reach decades into the future.

And so I think part of the project here is also to make Americans understand, and to exert pressure on the courts by helping them to understand that there is a- what the real agenda of conservative justices there are, and that this kind of figment of the Federalist Society agenda as being rooted in originalism, or textualism, as an ideology that has kind of independent significance or some kind of genuine historical value is completely bunk, and that the real goal here is to preserve the status quo.

So when there is, you know, an issue that reaches the court that has not been legislated, they’ll say that’s judicial fiat, leftists want to have a runaway court, we have to strike this down. When something’s been legislated and the way that they claim should be done and it reaches the Supreme Court, they say, well, that’s overreach somehow. And we’re going to strike that authority based on basically judicial- the same kind of judicial fiat that they criticize when it’s issues that aren’t advantageous to their financial interests. Which is why I think it’s crucial to keep this class analysis front and center, because that’s something that has been shown time and time again to cut through the riff raff. People understand when the 1 percent is looking out for itself. Citizens United is overwhelmingly unpopular, not just among Democrats. And those are the issues that we need to fight on, because that’s the battleground we can win on.

MARC STEINER: And finally, we can explore this later in the week and as we talk more about all this, but one of the things people are pushing for, I think you have also pushed for in some of your writing; other people are saying, as well, is that if the Democrats were to get control of the House, that impeachment proceedings, investigations should take place. This can’t just be left to linger, and say oh well, we just have to fight it some other way.

BRIAHNA JOY GRAY: Absolutely. And it shouldn’t- the decision to pursue them shouldn’t be based solely on the likelihood of impeachment actually happening. You know, I had, I was tweeting about this, and somebody said to me, you know, what’s the likelihood of the success here? And I said, you know, Donald Trump didn’t spend six years talking about how Barack Obama was born in Kenya because he thought that Barack Obama was actually going to get thrown out of office on the basis of not being an American citizen. He did it because he changed the- he wanted to change the political conversation, insert himself into it. And guess who’s president of the United States right now.

Democrats have to start making arguments as a part of a broader policy and principle project, and not just be focused on these discrete issues. Because when you focus on discrete issues in discrete races, that’s how you get called out for being purely political and opportunistic. That’s how you get called out for saying, oh, you just care about- you didn’t really care about Kavanaugh as a justice, you’re just opportunistically taking advantage of these accusations to derail him, because Democrats didn’t keep front and center of the fact that he was a bad judge, he was a bad choice because of his jurisprudential record before the Ford allegations even came up. Because he wasn’t questioned on those things during last Thursday’s hearing, it does start to feel as though we’re picking and choosing our battles. And we can’t concede ground when we have a moral high ground, because it’s the right thing to do, first and foremost, but also it’s the most politically advantageous thing to do. It’s a long game.

MARC STEINER: We’ll have a lot to push in this long game, because it certainly is not over. And Briahna Joy Gray, it’s been a pleasure to talk to you. Thank you so much for joining us here on The Real News. I look forward to continue our conversations together, I really do.

BRIAHNA JOY GRAY: Absolutely. It’s my pleasure.

MARC STEINER: Thank you so much. And I’m Marc Steiner here at The Real News Network. Thank you so much for joining us. We’re staying on top of this. More to come. Take care.

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Host, The Marc Steiner Show
Marc Steiner is the host of "The Marc Steiner Show" on TRNN. He is a Peabody Award-winning journalist who has spent his life working on social justice issues. He walked his first picket line at age 13, and at age 16 became the youngest person in Maryland arrested at a civil rights protest during the Freedom Rides through Cambridge. As part of the Poor People’s Campaign in 1968, Marc helped organize poor white communities with the Young Patriots, the white Appalachian counterpart to the Black Panthers. Early in his career he counseled at-risk youth in therapeutic settings and founded a theater program in the Maryland State prison system. He also taught theater for 10 years at the Baltimore School for the Arts. From 1993-2018 Marc's signature “Marc Steiner Show” aired on Baltimore’s public radio airwaves, both WYPR—which Marc co-founded—and Morgan State University’s WEAA.