Some of the news reports buried the lead. Their stories began with Trump or the Senate deciding to delay confirmation of Kavanaugh to allow the FBI to “investigate” further. But Trump and Republican leaders didn’t suddenly decide they wanted better optics than a mean drunk telling whoppers and raging about Clinton and Democratic conspiracies. And Senator Jeff Flake, who insisted on the FBI investigation, didn’t suddenly remember he has a wife and daughter (the sort of things guys mention to show they really don’t have sympathy for rapists).

Here is the real story, the rightful lead: Flake was confronted by activists as he left the Senate chamber. They shamed him for promoting a rapist into the Supreme Court, and CNN caught it on video. But if you only scan headlines and lead sentences in the story on Flake’s change of “heart,” you may have missed this. The Intercept, almost alone, centered the drama in their headline: “Protest Matters: Senate Asks FBI to Investigate Brett Kavanaugh After Sen. Jeff Flake Is Confronted by Sexual Assault Survivors.”

For almost five minutes, two brave women, Ana María Archila and Maria Gallagher, held the elevator doors open and faced down Jeff Flake. He could not bring himself to answer, or even look at them, when they demanded he say whether he believed Kavanaugh was telling the truth.

Flake too is now a trauma survivor — these may have been the five longest minutes of his life, “indelible in the hippocampus.”

Compare the Intercept’s framing with  The Washington Post story, which barely mentioned the heroic women six paragraphs into the article, in a parenthetical note:

[Headline] Kavanaugh vote: Senate Republican leaders agree to new FBI background investigation of Kavanaugh

[Lead] President Trump on Friday ordered the FBI to reopen the investigation of Supreme Court nominee Brett M. Kavanaugh’s background, a stunning turnaround in an emotional battle over sexual assault allegations that has shaken the Senate and reverberated across the country.

Or the Chicago Tribune, channeling AP, which mentions the two women 14 paragraphs into the article:

[Headline] Republicans, Trump agree to limited FBI probe of Judge Kavanaugh, delaying final Senate vote

[Lead] Reversing course, President Donald Trump bowed to Democrats’ demands Friday for a deeper FBI investigation of Supreme Court nominee Brett Kavanaugh after Republican Sen. Jeff Flake balked at voting for confirmation without it — a sudden turn that left Senate approval newly uncertain amid allegations of sexual assault.

To be fair, some other news media foregrounded the confrontation in accompanying articles, if not in the main article. But the takeaway here is that corporate media typically default to the agency of the political class and sideline or leave out pressure from activists and movements. To get that story in more depth, go to The Intercept, and also to Democracy Now, where, as often, you can expect to find not only foregrounding of the movement’s role, but in-depth interviews with the activists. (Watch — or read — Amy Goodman’s compelling interview with Ana María Archila.)

Would a Kavanaugh confirmation delegitimize the Supreme Court?

Will the confirmation of Kavanaugh threaten the Supreme Court’s legitimacy? Polls show there had already been a steady decline in “trust” in the Court over the past ten years. You can find a few dozen columns worrying about loss of legitimacy if Kavanaugh is confirmed — an accused rapist, a perjurer, a former Republican operative with “rabidly hostile views of the Democrats,” who could only be confirmed after an FBI whitewash and after hearings that both suppress evidence of wrongdoing and overlook obvious perjury and political bias.

The legitimacy of the courts used to rest on the claim that they decide conflicts impartially, based on principle and law, not on ideology, political or economic interest. That was  Kavanaugh’s carefully rehearsed first act, in the voice of the idealized, dispassionate, judge as neutral arbiter, guided only by law and reason. “A good judge must be an umpire,” he said, “a neutral and impartial arbiter who favors no litigant or policy. … I don’t decide cases based on personal or policy preferences.” But weeks later he responded to Dr. Blasey Ford in the voice of the Republican operative he once was, dispensing with any pretense of political neutrality or impartiality: The hearings, he said, “replaced advise and consent with search and destroy” and were “a calculated and orchestrated political hit … revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Kavanaugh’s performance also abandoned the “proper demeanor” he once said was a requirement for the judge as “umpire,” who must “keep [his] emotions in check.” His self-righteous and self-pitying rage, familiar to anyone with an alcoholic in the family, has led some prominent supporters to withdraw their support. Legal expert Benjamin Wittes, director of the prestigious Lawfare blog, long had a warm and admiring relationship with Kavanaugh. Now he says that Kavanaugh’s angry display alone, for the bias it reveals, should be enough to disqualify him.

What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would, after that performance, consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence? Quite apart from the merits of Ford’s allegations against him, Kavanaugh’s display on Thursday — if I were a senator voting on confirmation — would preclude my support. (The Atlantic, October 2, 2018.)

 “A new tactic was needed. Some of you were lying in wait and had it ready.” Democracynow.org.

Bias is “kryptonite” to the Court’s legitimacy

The appearance of bias is “kryptonite” to the legitimacy of the Court. Legitimacy is crucial to the courts and to the Supreme Court especially, because the lifetime appointments of its unelected judges make it both one of the most conservative and one of the most undemocratic institutions in our democracy. And the courts have no power apart from their legitimacy. They command no army, have no reserves of wealth; only their authority compels the politicians in power to enforce their decisions. Without legitimacy, the Supreme Court is powerless; you can imagine a Trump simply ignoring a court order to hand over documents … or worse.

How much does legitimacy matter? Don’t most people recognize that the Court, deciding crucial issues along party lines, is a deeply political institution, as intensely partisan as our divided electorate? Legitimacy is a function of popular approval —  but also of whether people are willing to take action. The clearest example of Supreme Court political bias was “Bush v. Gore.” Bush became president in 2000 after the Republican majority on the Supreme Court stopped the vote recount in Florida. Not only did Bush lose the popular vote and benefit from massive voter suppression in that state — decisive votes weren’t even counted. Were the presidency and the Supreme Court delegitimized? Most people accepted Bush’s legitimacy, and life and government went on. And today polling shows that more than half of Republicans would want Kavanaugh confirmed even if Blasey Ford’s accusations are true.

The danger of Kavanaugh’s nomination goes beyond fears for Roe v. Wade or his bias against Democrats and the “left” (in that broad and vague meaning of the word in right-wing discourse). The Supreme Court’s conservative majority has consistently allowed the Republican Party to amass more and more power while disempowering Democrats and Democratic voters. They have impaired the Voting Rights Act, protected gerrymandering, allowed unlimited campaign contributions and voter suppression through onerous ID laws. Most recently, they attacked the right to form unions, a crucial resource for the Democratic Party and for working people. Expect more of the same in a Court dominated by the radical right. The Republicans are willing to suffer losses in the midterms for the sake of a generation or more of an extreme right-wing Court.

 But does legitimacy really matter?

Kavanaugh could only be confirmed through a cynical exercise of raw procedural power, no matter the impact on the appearance of due process and even the legitimacy of the Court. The Republican base doesn’t seem to care. Yet legitimacy in the long run is crucial to stability. Political rule depends not only on force, but also on consent, on trust in the ruling institutions. When people have no hope of meeting their needs within the formal political process, they go outside it. In the 1930s and the 1960s, that meant massive social movements that upended the political class and forced deep societal change — much the better scenario than the violent uprisings and civil wars seen elsewhere.

Kavanaugh will almost certainly be confirmed. In the short run, after decades of declining trust in our political process, we already see growing destabilization. Activists everywhere have taken to the streets, scores of powerful men have been shamed and ousted by #MeToo, racist police regimes are under assault, and both party establishments have been shaken.  Trump took over the Republican Party, and the Democratic elites are under threat with incumbents unseated by an upsurge of women and progressives. Even Chicago’s Democratic machine is fractured, with Mayor Rahm Emanuel forced to cede power. And most probably the Democrats will control the House and launch investigations undermining Republican rule.

But even if Democrats win the House in 2018, and in 2020 win the House, the Senate and the Presidency, the Republicans will have a right-wing Supreme Court that will reliably overturn one progressive reform after another. Will we see the social movements continue to grow? Will we see again, as in the 1930s and 1960s, the pervasive activism, disruption and destabilization that forced conservative courts to accede to popular demands? Or will we see Trump followed by even more effective right-wing demagogues?

And what will you all do?

Readings you might have missed, besides articles linked to above:
Cass Sunstein wrote the only column I’ve seen arguing that legitimacy of the Supreme Court is in no danger: “Kavanaugh Confirmation Won’t Affect Supreme Court Legitimacy.” Bloomberg, September 30, 2018.

Martha Nussbaum, “The Roots of Male Rage, on Show at the Kavanaugh Hearing.” Washington Post, September 29, 2018. Her most recent book is “The Monarchy of Fear: A Philosopher Looks at Our Political Crisis.”

Dave Zirin, “What the Worst of Sports Taught Brett Kavanaugh—and What It Still Teaches Today.” The Nation, September 26, 2018.

Hailey Fuchs, “A Flag of Underwear: Photo from Kavanaugh’s time shows DKE hijinks.” Yale Daily News, September 20, 2018.

Charles P. Pierce, “A High-End Legal Ratf*cker Is Still a Ratf*cker.” Esquire, October 2, 2018.

Gallup, “Confidence in Supreme Court Modest, but Steady.” October 2, 2018.