Thoughts on the Kavanaugh Thing (part two): A Tale of Two West Wing Episodes

Since Trump’s election, one of the ways I’ve tried to escape daily reality is by rewatching episodes of The West Wing. This is not, from what I have gleaned, an uncommon strategy. I have also rewatched Aaron Sorkin’s proto-West Wing film The American President at least three times, and watched President Andrew Shepherd’s (Michael Douglas) climactic speech more times than I can count.

Since the announcement of Brett Kavanaugh’s nomination, I’ve been wanting to rewatch what I think is easily the best post-Sorkin episode of The West Wing: season five’s “The Supremes.” Unfortunately, Netflix no longer carries The West Wing, and I only own the first four seasons on DVD (first world problems). But after last Thursday’s testimonial drama, I bought the single episode on iTunes and watched it.

The premise and the resolution is classic West Wing, to the point where it made me wonder when I first watched it if it was an episode Sorkin had written before his exit from the show (it wasn’t). Justice Owen Brady, a young(ish) conservative firebrand, dies suddenly, and so the Bartlett White House is given the gift of replacing a conservative judge with someone more in their wheelhouse. Of course, given the Republican control of Congress, anyone too liberal—or really, liberal at all—is out of the question. But in a bit of theatre to scare conservatives and make their ultimate nomination more palatable, the senior staff make a show of interviewing some liberal firebrands—most specifically, Evelyn Baker Lang (Glenn Close), whose judicial history defending women’s reproductive rights has made her a bête noir of the right. Meanwhile, as her presence in the West Wing causes conservatives to shake in their space boots, the president and senior staff set their sights on moderate Brad Shelton (Robert Picardo), who is pretty much guaranteed not to rock any ideological boats:

supremes - robert picardo

BARTLETT: Affirmative action is going to be back in the next few years. Let’s start there.
SHELTON: What do I know about it?
BARTLETT: What do you think about it?
SHELTON: I don’t know. [pause] Not the answer you were looking for?
BARTLETT: Not really.
SHELTON: Unnerving, isn’t it?
BARTLETT: Is there another topic you’d be more comfortable with?
SHELTON: Nothing comes to mind.
BARTLETT: Perhaps you should make something up.
SHELTON: I’m not trying to be cagey, but I don’t position myself on issues and I don’t know what I think about a case until I hear it. There are moderates who are called that because they are not activists. And there are moderates who are called that because sometimes they wind up on the left and sometimes on the right.

I’ll come back to this passage momentarily, but meanwhile, long story short: the episode is an indictment of moderation, depicting the need to find milquetoast candidates for SCOTUS as a failure of the higher ideals of debate and argument between fiercely opposed but honest camps. A compromise is brokered: Chief Justice Roy Ashland (Milo O’Shea), a brilliant liberal lion suffering from dementia, will step down and be replaced by Evelyn Baker Lang. In exchange, the Republicans get to replace the dead Brady with conservative firebrand Christopher Mulready (William Fichtner), who earlier in the episode articulated the value of having ideologues on the Court.

MULREADY: Who’s at the top of the list? [pause] If I leaked it would they believe me?
BARTLETT: Brad Shelton.
MULREADY: Really?
BARTLETT: You don’t like him?
MULREADY: He’s a fine jurist. And in the event that Charmine, Lafayette, Hoyt, Clarke and Brandagen all drop dead this summer, the center will still be well tended.
BARTLETT: [laughs] You want another Brady?
MULREADY: Sure, just like you’d like another Ashland—who wouldn’t? The court was at its best when Brady was fighting Ashland.
BARTLETT: Plenty of good law written by the voice of moderation.
MULREADY: Who writes the extraordinary dissent? The one man minority opinion whose time hasn’t come, but 20 years later some circuit court clerk digs it up at three in the morning.

This tune wasn’t written by Aaron Sorkin, but sounds like a pretty accomplished Sorkin cover band. The attractive mythos of his work is that all people in the wrong need is one persuasive argument to come around; that, and the depiction of workplaces staffed by intelligent, dedicated, honestly devoted people. My favourite line from his first series Sports Night is when Isaac Jaffe (Robert Guillame) says, “It’s taken me a lot of years, but I’ve come around to this: If you’re dumb, surround yourself with smart people. And if you’re smart, surround yourself with smart people who disagree with you.” It’s sentiments like this that make The West Wing and other Sorkin products feel like safe harbour in the present moment of rampant bad faith, hypocrisy, and mendacity.

BUT.

Perhaps you’ve already figured out where I’m going here.

I rewatched “The Supremes,” but it was unsatisfying … even as fantasy. Its principal centerpiece was when Evelyn Baker Lang runs into Christopher Mulready in the West Wing, and the two proceed to have an animated argument about various points of law—ideological enemies who obviously enjoy each other’s company, and enjoy even more the cut and thrust of legal debate.

supremes - close & fichtner

Which, for what it’s worth, I have no doubt happens in the actual SCOTUS. Both Ruth Bader Ginsburg and Elena Kagan have expressed affection for the late Antonin Scalia, someone whose opinions and personality you would think would be anathema to them. But the fact remains that the Court has become almost absolutely polarized in the past few decades; the fact that Anthony Kennedy voted with the liberals on abortion and gay rights made him the sole justice whose vote wasn’t a foregone conclusion. The prospect of a court filled with Brad Sheltons, who might honestly consider cases on their individual merits and whose votes would not be predictable, seems vaguely utopian in the present moment. I suppose that in the imaginary SCOTUS of this West Wing episode, in which, apparently, five out of the nine justices are centrists, a couple of extreme voices would be good for the sake of debate; but that has not been the nature of the Supreme Court for a very long time, if indeed it ever was.

Fortunately, The West Wing boasts more than one episode devoted to nominating a Supreme Court justice. Well … one other episode, from season one, which is actually far more germane to our present situation for a variety of reasons. In “The Short List,” the senior staff plan to nominate a justice who is, to use one of Donald Trump’s favourite expressions, right out of central casting. His name is:

JOSH: Peyton Cabot Harrison III.
DONNA: Yes.
JOSH: Peyton Cabot Harrison III. He sounds like he should be a Supreme Court justice.
DONNA: It’s a good name.
JOSH: Phillips Exeter, Princeton, Rhodes scholar, Harvard Law Review, for which he was, oh yeah, the editor. Did I mention that he was dean of Harvard Law School? Did I mention that his father was attorney general to Eisenhower?
DONNA: Peyton Cabot Harrison III.
JOSH: That’s right.
DONNA: Jewish fellow?
JOSH: You’re not gonna ruin this moment for me, Donna.

(There’s a “Merrick Garland” joke to be made here, but I’m just going to ignore it).

When the President later meets with Justice Joseph Crouch (Mason Adams), whose retirement is opening the seat, the justice takes Bartlet to task for not living up to the promise of his campaign:

CROUCH: You ran great guns in the campaign. It was an insurgency, boy, a sight to see. And then you drove to the middle of the road the moment after you took the oath. Just the middle of the road. Nothing but a long line painted yellow.
BARTLET: Excuse me, sir…
CROUCH: I wanted to retire five years ago. But I waited for a Democrat. I wanted a Democrat. Hmm! And instead I got you.

He also upbraids Bartlet for making such an obvious choice for his replacement, and begs him to reconsider nominating someone else:

CROUCH: You’ve decided on Harrison.
BARTLET: I haven’t made a decision yet, Joseph.
CROUCH: You’ve made the call. [beat] Did you even consider Mendoza?
BARTLET: Mendoza was on the short list.
CROUCH: Mendoza was on the short list so you can show you had an Hispanic on the short list.
BARTLET: That’s not true, Joseph.

Long story short: Bartlet has second thoughts, enough to make him ask his staff to put together some information for him on Mendoza—“I just want to be able to know something. There’s gonna be a lot of questions. I don’t want it to be ‘we had a Hispanic on the short list’”—but not enough to make him change his mind. That is, until Sam Seaborn (Rob Lowe) uncovers an old article of Judge Harrison’s making the argument that there is no constitutional protection for privacy. Long story even shorter, they throw Harrison out of the boat and bring in Judge Roberto Mendoza (Edward James Olmos) for an interview.

(Full disclosure: I love Edward James Olmos, and would happily watch anything he’s in. He’s one of those actors who brings such immense gravitas to everything he does, and his sole two appearances on The West Wing are no exception).

weat wing - olmos and sheen

Some people in the West Wing are not overly pleased with the change in game plan, however:

MANDY: I’m the one who has to sell this. And he is not exactly America’s idea of Supreme Court justice.
JOSH: Mandy, I don’t…
MANDY: Let’s do a side-by-side comparison. [reads from piece of paper] Harrison went to Walnut Park Country Day, Phillips Exeter, and Princeton undergrad, and Harvard Law. Mendoza attended P.S. 138 in Brooklyn, City University of New York, and the New York Police Department. Harrison clerked for Warren Berger. Mendoza…
JOSH: [off of the top of his head] New York City Police Department ’65 to ’76, Assistant District Attorney Brooklyn ’76 to ’80, Assistant U.S. Attorney Eastern District, Federal District Judge, Eastern District. Let me tell you something, Mendoza went to Law School the hard way. He got shot in the leg, and when they offered him a hundred percent dispensation, he took a desk job instead and went to law school at night. He’s brilliant, decisive, compassionate, and experienced. And if you don’t think that he’s America’s idea of a jurist, then you don’t have enough faith in Americans.

OK—this is where this episode resonates with me in the present moment. My next post in this series will be about the pernicious myth of meritocracy, something present, I’m sorry to say, in almost every other piece of Sorkin property. Generally, The West Wing is obsessed with credentials: Sam’s secret service code name is “Princeton,” C.J. has a Masters from Berkley, Josh was a Fulbright scholar and went to Harvard Law, and the President is a graduate of Notre Dame, has a doctorate from the London School of Economics, and was awarded a Nobel Prize in economics. I’ll talk more about this in my next post, but Brett Kavanaugh’s repeated, plaintive mantra of “I went to Yale!” made me think of this moment in the episode, especially the point at which Peyton Cabot Harrison III, under intense questioning from Sam Seaborn, says

HARRISON: This sideshow is over. With all due respect, Mr. President, I find this kind of questioning very rude.
SAM: Well then, you’re really gonna enjoy meeting the U.S. Senate.
HARRISON: Be that as it may, it’s disgusting. We all know you need me as much as I need you. I read the same polling information you do. Seven to ten point bump, 90 votes, unanimous out of committee, I was courted. Now, you have me taken to school by some kid.

This, of course, is hardly the spittle-flecked rage exhibited by Kavanaugh, but it is a dramatization of the same sense of entitlement. A few moments later, Harrison says, “I am an extremely well credentialed man, Mr. President, and I’m unaccustomed to this sort of questioning.” Again, resonance with the present moment: the anger Kavanaugh exhibited last week was this sort of sentiment cranked up to eleven: anger at the effrontery that you might be denied what you feel you deserve. “The Supremes” is a great episode, and one that articulates an idealized vision of good-faith debate; “The Short List” articulates something more immediate and crucial to our present moment, which I’ll get into in my next post: namely, that diversity isn’t just about race and gender, but also about thought and background. As I said in my previous post, the fulminations from Lindsey Graham et al that these accusations levelled at Kavanaugh will “ruin his life” are just so much horseshit. Kavanaugh’s suggestion that his admission to Yale was due entirely to his own hard work is more of the same.

That said, it’s not hard to understand why he might consider his educational background a defense. Looking at the current SCOTUS, every single justice went to either Harvard or Yale law school; the only sort-of exception is Ruth Bader Ginsberg, who transferred to Columbia from Harvard.

I’m not saying an Ivy League education is a bad thing. What I am saying is that I will address this question in my next post.

To be continued.

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