Tribalism is not patriotism

That didn’t last long.

John McCain was laid to rest last weekend. Regardless of your opinion on his politics, he was lauded as someone who tried to put the nation’s best interest first. That is why he was eulogized by two former presidents, who each bested him en route to the White House (with supporters levying some pretty deplorable campaign rhetoric). Yet the men with whom he competed honored his intentions, even if they may not have agreed with his policies in life.

With his final public statement, McCain warned his fellow Americans “we weaken our greatness when we confuse our patriotism with tribal rivalries.”

Then, Tuesday morning, Judge Brett Kavanaugh sat before the Senate Judiciary Committee. He was continually interrupted by protesters who confused patriotism with tribal rivalry. And their idea of “protest” was incoherent, disruptive shouting.

President Donald Trump’s Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee for the third day of his confirmation hearing on Thursday. (AP Photo/J. Scott Applewhite)

The show trial of Kavanaugh is exactly what is wrong with politics today. Groups on the left have levied ludicrous charges in an effort to raise dollars and foment discord. For example, a group calling itself “Protect Our Care” is spreading spurious claims that people with pre-existing conditions will lose health care if Kavanaugh is confirmed.

I’ve said it before. I’ll say it again: Kavanaugh ruled that the Affordable Care Act — Obamacare — was a legitimate exercise of congressional authority. As a matter of policy, he probably thought it a foolish, unsustainable, wrongheaded law. But, subject to constitutional limits, Congress is empowered to enact bad policy. They do it fairly often.

So accusations that the ACA is somehow imperiled by Kavanaugh ring hollow, to say the least. As do many of the other arguments mustered against him.

“Donald Trump shouldn’t appoint a Supreme Court Justice while under investigation!” OK. While it seems a confused position — Congress, not the courts, holds the constitutional authority to discipline and remove the executive — let’s accept it. If Vice President Mike Pence says he would appoint Kavanaugh, would that remedy the objection?

If Pence is tainted by the investigation too, what about the next guy in line, Speaker Paul Ryan? If he vouches for the nomination, can it go forward? Or is the real objection that Republicans should not make Supreme Court appointments? Because Kavanaugh is exactly the kind of candidate who Trump, Pence, and Ryan would all agree upon.

Another argument concerns historic documents of the Bush administration. Kavanaugh is a bit of a special case, because his work for the former president was not simply as a lawyer. Instead, for a period of time he was the “staff secretary.” That meant he was the traffic cop managing the flow of information to the president. It is not a policy-making position; he provided the president what he needed to know, when he needed to know it, obtained from those elsewhere in government.

Democrats have made hay (and sent plenty of fundraising emails) claiming this is somehow nefarious. However, if Secretary of Defense Robert Gates sent a memo to President George W. Bush, it went through Kavanaugh. How these type of documents are relevant to a Supreme Court nomination is a mystery. Particularly when the candidate has been a federal appellate judge for more than 12 years.

In many ways, the entire opposition to Kavanaugh is a caricature. One of the very first people to testify during the hearing was attorney Lisa Blatt. She is a liberal legal luminary, former clerk to Ruth Bader Ginsburg, and led a charge against Trump’s “travel ban.” Blatt’s opinion? Kavanaugh is “supremely qualified” for the Supreme Court, and should be confirmed. The response from her political allies is denigration.

For those legitimately worried about “what if” the nomination passes, maybe Maine’s example can set them at ease. One of the “Chicken Little” predictions following Gov. Paul LePage’s election in 2010 was that he would destroy the Maine judiciary by appointing rabid right-wing troglodytes. The reality? LePage is almost universally praised for his selections. Chaos has not ensued.

And, despite all the doomsday predictions, things will be OK if Appellate Court Judge Kavanaugh becomes Supreme Court Justice Kavanaugh. Hopefully our senators will heed McCain’s final words and not confuse tribalism with patriotism.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.