In Search of the Swing Vote: What John McCain and Brett Kavanaugh Don’t Have in Common

September 10, 2018 | Swanee Hunt

Irony is alive and well. This past week’s raucously contentious hearing over a highly questionable Supreme Court nominee is occurring only days after the dignified yet moving memorial service of highly regarded John McCain.

To be clear, Senator McCain supported the nomination of Brett Kavanaugh for the highest court in the land. So this blog post isn’t a partisan diatribe. (I reserve my personal journal for tirades.) Rather, it’s a rumination on the checks and balance intrinsic in the groundbreaking American constitution.

The calling of a United States Senator is built on a basic precept: country before career. No one has embodied that calling more than the naval officer who gave fidelity to his country, even as he twice tried to take his own life during five and a half years of torture by the Viet Cong.

The scrappy Arizonan included in his funeral plans two eulogies by party leaders who opposed his bids for the presidency: Republican George W. Bush and Democrat Barack Obama. Ever the political maverick, he interjected the strongest bi-partisan symbol possible into his last statement to the world. That cross-aisle principle was a fundamental value. McCain was one of a precious few in the Senate to act independent of party—on issues such as campaign finance, torture, and most recently protection of the Obama’s Affordable Care Act. Although every four years, he canceled my vote, my respect for Senator McCain was dependent on character more than agreement.

This week is another moment meant for character. With a looming constitutional crisis more ominous than any impending legislative stalemate, individual Republican and Democratic Senators must once again be measured against their cantankerous colleague. Within the month, the upper chamber will give a thumbs up or down to Brett Kavanaugh, Trump’s embattled Supreme Court nominee. That’s Donald Trump, the President whom McCain excluded from his final invitation list.

The former prisoner of war did not make tortured career sacrifices for an occasion like this. During his 36 years in Congress, he watched policy initiatives be born and languish. Although he expressed support for the nomination of Brett Kavanaugh for the Supreme Court, what he was spared seeing is the strong possibility that a mendacious head of state (whom he loathed) can be protected from prosecution, or even allowed to pardon himself. These are not overworked words; the carefully non-partisan organization PolitiFact counts between seven and eight times per day that President Trump has lied to American and global citizens.

It’s two years since the 2016 presidential debacle of a contest when candidate Trump mocked the stratospheric price McCain paid as a war hero. In that corrupted campaign, I witnessed the ugliest underbelly of human nature not only exposed but force fed. Since then, my outrage has been dulled by shock fatigue. As I have done periodically, however, it’s time for me—and us—to not only shake off numbness but also reawaken action.

If the House impeaches the President, will there be enough votes in the Senate to remove him from office? A two-thirds majority of the upper chamber is required, and, of course, it’s all but impossible to imagine an adequate number of policymakers who will act on the words of conscience they’ve expressed—then repeatedly ignored.

Now I’m sitting in my Civics 101 class. Let’s see: Three branches of government. Right? Checks and balances. Right?

Wrong. Our executive branch is not going to eat its young. And our legislative branch is not going to live up to its words.

That leaves… that leaves the judicial branch. And who is on his way in? A judge who has written that a president should not be prosecuted while in office. Once Judge Kavanaugh becomes Justice Kavanaugh, for the next two-and-a-half years (until we can remove Trump at the polls) we will have no governmental body to intervene.

Since I watched the President’s Rose Garden moment announcing his nominee, Democrats have been sounding the alarm. Without Justice Kennedy, the court divides along partisan lines; its keel anything but even.

At this dumbfounding juncture in our history, that ruling—a reversal of the standard applied to Bill Clinton—would be afforded Donald Trump, whose nefarious connections to Russian influence are becoming more and more obvious.

I’ll leave it to thousands of others to argue the merits of that legal case. My concern is more personal. It’s the process—as it affects every Senator. If Kavanaugh makes it through, it will be with the barest majority.

And so rather than at the level of the Supreme Court itself, the swing vote won’t be on the bench. It will be in our equally divided Senate only a few days from now when the composition of the Court will likely be sealed for a generation to come.

The swing vote has moved downstream. Unless someone moves into the middle, the Senate will confirm a justice who has stated publicly that a President should be above the law while in office. The legislative branch will allow the judicial branch to allow the executive branch to thwart the special prosecutor of the executive branch or the impeachment process conducted by the legislative branch. So much for my civics course.

Two years ago, the confirmation of President Obama’s nominee Merrick Garland was quashed. Our current situation is alike—but different. Then the issue at hand was conservatism—guns, abortion, campaign reform, immigration, the environment. But this week it is the threat of overriding an independent counsel’s indictment of a political and personal thug destroying US standing internationally and enacting policies not only questionable but tragic.

So, moderates, step forward. Use your swing vote to maintain our faith in the Senate as the branch of government independent enough to stand in the way of history’s most corrupt leader of the free world. In memory of a national hero, make us proud.