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Up With Hannity: Analyzing SCOTUS Pick Kavanaugh With Trump's Most Vociferous Defender

Sean Hannity
In this March 4, 2016, file photo, Sean Hannity of Fox News arrives in National Harbor, Md. to address a national gathering of conservatives.
Carolyn Kaster/AP

Monday was a big day for Sean Hannity, the conspiracy-minded Fox News Channel host. After all, it’s not every day that the president of the United States — even one you’re as close to as Hannity is to Donald Trump — schedules the unveiling of his choice for the Supreme Court in order to give you a ratings boost. According to Gabriel Sherman of Vanity Fair, some White House staff members believed Trump did exactly that. Sherman tweeted that Trump may have chosen 9 p.m. at the behest of his sleazy new communications director, Bill Shine, the former head of Fox News.

Despite this propitious opportunity, Hannity didn’t really deliver the goods, prattling on for an hour with his usual talking points and his usual guests. He didn’t quite come off as bored, but his anger and his enthusiasm seemed rote. Indeed, there was a play-acting quality to the proceedings in general. Both Republicans and Democrats know that the president’s choice, Court of Appeals Judge Brett Kavanaugh, is pretty much a lock to win confirmation.

Still, three themes emerged that I suspect we will hear over and over during the next few months.

The first is that we are a “constitutional republic.” President Trump made that point in his opening remarks, and Hannity repeated it several times. That might seem like a statement of the obvious. So why keep bringing it up? I suspect it’s because we are in the midst of a prolonged period of minority rule. A number of articles have been published recently documenting growing restiveness among the powerless majority.

Consider: Trump is president because for the first time in more than a century the winning candidate captured the Electoral College despite losing the popular vote by a wide margin. (Remember, the contest between George W. Bush and Al Gore ended in a virtual tie.) That’s not all. By 54 percent to 42 percent, voters favored Democratic candidates for the U.S. Senate in 2016. And the Republicans’ victory in House races paid off in numbers disproportionate to their razor-thin margin of 49 percent to 48 percent.

No, that’s not the way we count votes in Senate and House elections. But it does show that Democrats have been shut out of power even though voters prefer them. Mitch McConnell’s deeply corrupt refusal to allow a vote on President Barack Obama’s Supreme Court nominee, Merrick Garland, only served to underscore this anti-majoritarian trend. So expect to see a lot of talk in the weeks to come from Hannity and other Trump supporters that the United States isn’t really a democracy, and why that’s a Good Thing.

The second talking point I noticed is that the right wants to cast Democrats as opponents of fair play by declaring their opposition to Kavanaugh before giving him a chance to make his case. For instance, conservatives are having some fun with a statement from the Women’s March, clearly written before the Kavanaugh announcement, saying that if “XX” is confirmed it will be “a death sentence for thousands of women.”

“They would object to anyone this president nominated,” Fox News’ Shannon Bream told Hannity. “They’re going to come after him because that’s what they do,” added Jay Sekulow, a lawyer who’s a veteran of right-wing causes as well as a member of Trump’s legal team. Hannity himself warned his viewers that “the smearing, the besmirching, the fear-mongering … this all-out effort to Bork Judge Kavanaugh” has already begun. Hannity added: “They are going to lie to you. That’s what they do. You have to rely on your heart and mind and do your own research.”

Here’s the problem with the notion that the instant opposition to Kavanaugh is somehow unfair: During the campaign, Trump put out a list of 11 judges from which he said he would choose. The list was later expanded to 25. Hannity and his guests referred to the list several times Monday night as an example of how “transparent” Trump has been. Well, you can’t have it both ways. Democrats and liberals have known for many months that Kavanaugh could be picked. It would have been a surprise if they weren’t prepared with an instant reaction to every XX on the list.

The third talking point may prove to be the most substantive, especially if there’s any chance of persuading a few Republicans opposed to runaway executive power to vote against Kavanaugh. (Ha ha! I can’t believe I just typed that.) Hannity made several uneasy references to Kavanaugh’s arguing in a 2009 law review article that a president should not be subject to criminal or civil proceedings while in office, and he noted that this was a reversal of Kavanaugh’s earlier position.

In fact, Kavanaugh did a complete flip-flop. Back when he was working on Kenneth Starr’s inquisition into the great crime of whether Bill Clinton had lied about oral sex, Kavanaugh believed that the president should not get a “break,” as he put it. Now, though, Kavanaugh thinks the president should be held harmless until after he leaves office.

“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote in the Minnesota Law Review. “To be sure, one can correctly say that President Clinton brought that ordeal on himself, by his answers during his deposition in the [Paula] Jones case if nothing else.”

Now, of course, we have another president facing legal jeopardy on a variety of criminal and civil fronts, from possible collusion with the Russian government to the alleged use of his charitable foundation for personal gain. It’s not difficult to understand why Hannity and his guests on Monday stepped carefully around Kavanaugh’s change of heart, even if they are secretly delighted.

Democrats, on the other hand, wasted no time in picking up on that point. On MSNBC, Sen. Elizabeth Warren said that “Donald Trump got the trifecta” — a nominee who would likely vote to overturn Roe v. Wade, kill off the Affordable Care Act once and for all, and, if necessary, help Trump “if he gets into serious legal trouble.”

That one of Bill Clinton’s persecutors may emerge as a defender of Trump’s possible legal offenses is in some cosmic sense an apotheosis of hypocrisy, even if on a personal level Kavanaugh’s reversal was sincere. I don’t expect Hannity and his crew to defend that hypocrisy effectively. But I have no doubt that they’ll defend it loudly, repetitively, and disingenuously, which in the age of Trump is all that seems to matter.

WGBH News contributor Dan Kennedy is the author of “The Return of the Moguls: How Jeff Bezos and John Henry Are Remaking Newspapers for the Twenty-First Century.”

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