The Ghost of Merrick Garland, Part II
Neil warned me that this happened to him.
He didn’t want to sound crazy, and I understood why. Hell, I didn’t believe it myself, not being big into the supernatural (our mutual Catholicism notwithstanding).
But I believe it now.
The ghost appeared to me in the early morning hours, the very day after I had been sworn in by a very somber John Roberts. I was passed out on the couch, just in my boxers. The ghost had to shake me awake, because I had blacked out after an epic night pounding celebratory brewskis with Judge, Tobin, PJ, and Squi.
“Brett. Brett — wake up. It’s me, Merrick.”
I rubbed my eyes and collected myself, then looked up. There he was in all his occult, ectoplasmic glory: the ghost of Merrick Garland. Just like Gorsuch had warned me.
My head was pounding like Keith Moon had taken up residence in my cerebellum and my mouth felt like Death Valley. I caught a glimpse of myself in the mirror. Someone had drawn an erect penis on my forehead with a Sharpie. (I’m sure it was Squi — what a card!)
“Merrick, what the hell are you doing here?” I asked.
“Why, haunting you, of course. Did you not get the memo?”
“Is there really any need for that? I mean, we work together in the DC Circuit. Can’t you just accost me in the cafeteria?”
“Not since you’re moving on up. Anyway, this is much more dramatic.”
“But how can you be a ghost if you’re not dead?”
“I went over this with Neil last year. Let’s just call it poetic license. Or maybe taking a liberty is a better way to put it. You’re good with taking liberties, right, Brett?“
“I don’t know what you’re talking about,” I said with the utmost sincerity I could muster. “I spent my whole youth focused on sports, school, and my service projects.”
Garland’s ghost was having none of it. “How’s it feel to be one of the most hated men in America? To have singlehandedly destroyed the credibility of the United States Supreme Court? To be a pariah everywhere except among the Kool-Aid drinkers at Fox, Breitbart, and InfoWars? To have 2400 law professors, the American Bar Association, your old classmates, John Paul Stevens, and even the Jesuits all question if you’re fit to sit on the bench?”
I shrugged. “I’m OK with it.”
I couldn’t resist adding: “How’s it feel to be oh-so respected but noton the Court?”
“I guess that’s kind of the point.”
I grabbed a t-shirt off the floor — Yale Law, my favorite — and pulled it over my head, feeling every one of the previous night’s Natty Bo’s in the process. The big houseplant by the door had been smashed, scattering soil everywhere; I didn’t remember how. The ghost watched me.
“You do realize that your life as you knew it is now over, right, Brett? You’re going to be haunted — and hounded — for the rest of your life……and not just by me, but by millions of Americans who will never forget the circus that attended your confirmation, or the allegations against you, or your unwillingness to endorse a proper investigation of them that an innocent man would have welcomed, or the appalling way you defended yourself.”
“It worked, didn’t it?”
“Worst of all, you’ll be haunted by your own conscience, to the extent you have one. Because you know what you did.”
I crossed my arms but didn’t answer. He pressed his case.
“Anybody and everybody who lived through the Eighties in your world of upper class white privilege…..anybody who went to college…..knows that every allegation against you rang absolutely true. There were things Christine Blasey Ford said — and things that were written in your yearbook, and things documented by your old drinking buddy Mark Judge in his sub-moronic memoir — that nobody, not even the best novelist, could ever have made up.”
I gave a snort of disgust. “That’s how desperate the Democrats were to stop me. They had to reach back and dissect my high school yearbook.”
“Ah, Brett, that’s a bad faith argument if there ever was one, and you know it. The issue isn’t that you were — in your own handwriting from 1983 — a ‘loud, obnoxious drunk’ and ‘prolific puker,’ but that in 2018 — under oath — you lied about it. All that nonsense about ‘boofing’ and the Devil’s Triangle and the Beach Week Ralph Club. How dumb do you think the American people are?”
I started to answer but he cut me off.
“But the low point had to be that stuff about that poor girl, the one you and your buddies humiliated in print. Shame on you, you bully. You coward.”
“Sticks and stones, Merrick.”
“Why didn’t you just say, ‘Yeah, I was a foolish kid and I drank too much, but that’s long behind me now.’ But you couldn’t do that, could you? You had to portray yourself as a choirboy. You overreached, and that’s what pissed off so many of your old classmates, even the ones who’d been willing to vouch for you before that. I mean, Jesus: you got in a barfightin 1985 and there was a POLICE REPORT about it. Not a rumor or an allegation — an actual report in black and white. If Sonia Sotomayor had been in a barfight in the Bronx when she was in college, do you think she’d be on the Court today? But with you it didn’t move the needle at all.”
“Why should it?” I snapped. “None of that youthful mischief — to the extent that it’s even true — is relevant to my fitness as a judge 36 years later. A little adolescent indiscretion should erase a lifetime of public service?”
“First of all, I don’t know if lawyering up the Bush administration’s torture program constitutes a ‘public service.’ But even for people who think it does, you wildly misrepresented your past. In and of itself that wouldn’t be a disqualifier, but in the current context it‘s yet another piece of evidence that you blatantly lied to Congress. And if you lied about that, how can we believe your already dubious denials of committing sexual assault? As Senator Blumenthal said, “Falsus in uno, falsus in omnibus.”
“That’s rich, coming from a fake Vietnam vet.”
“And even richer that the Draft-Dodger-in-Chief thought he has the cred to call Dick out on it. The administration stonewalled hundreds of thousands of pages about your role in Bush’s warrantless wiretapping, and about the stolen Democratic memos, and you lied about it all — under oath.”
“I did no such thing!”
“Then you won’t mind if we see all those withheld documents, will you?”
I bit my lip.
“Didn’t you also lie about when you knew of Deborah Ramirez’s allegations? You claimed it was only when the article came out in the New Yorker. But you’d been texting friends to organize a campaign to discredit her as far back as last July. That is a stark and troubling moment of dishonesty before a Senate committee — perjury some might say — that ought to disqualify you all on its own.”
A snarl curled across my face. “I’m not here to be interrogated. I’ve had quite enough of that already.”
“So in other words, you’re not denying it — not this time anyway — just acting offended as a form of misdirection? Blumenthal was right. All this is relevant to the fitness of a person who wants to sit on the Supreme Court. Heck, I’m beginning to wonder if you even lifted weights with Tobin and Squi.”
I flexed my delts. “Here’s the proof, bro. You don’t get ripped like this without putting in the work.”
ADDING INSULT TO PERJURY
The ghost didn’t look impressed. He continued:
“It goes without saying that this was a railroad job from jump street and they weren’t about to let anything stop it. McConnell claimed Obama shouldn’t be allowed to nominate a justice in his final year, before the election. Then he turned around and insisted it was a matter of life and death that Trump’s nominee be confirmed beforethe election. Beginning to smell the rotten fish here?”
“I don’t see how the situations are comparable, frankly.”
“You went to law school, right, Brett?”
“Yes, Yale Law.”
“I know. I was being facetious. But since you went to law school….“
“Yale Law.”
“…but since you went to YaleLaw, I’m sure you were as puzzled as I was to hear the GOP going on and on about ‘innocent until proven guilty.’ They weren’t so concerned about that when Al Franken was hit with far milder allegations that yours. But I’m sure you know — even if Fox News doesn’t — that this wasn’t a criminal trial; it was a job interview, as many sane people pointed out. For kind of a big job. So the standard of ‘beyond a reasonable doubt’ doesn’t obtain. The Republicans framed this whole thing as if the burden was on the Democrats to prove you were unfit, not on you to prove why you deserved the best job in America. But in the same way that the Senate had the authority to disregard anything in your past and go ahead and confirm you, it also had the authority to reject you for any reason at all — even just the whiff of impropriety, or simply because they didn’t like the cut of your jib. Plenty of would-be justices have met that fate. Hell, Doug Ginsburg lost a seat on the Court because he smoked a joint! Meanwhile you had a whole raft of serious questions floating around you, and yet through you sailed.”
“I wouldn’t say ‘sailed.’ It was a nail biter.”
“So what was with that epic hissy fit anyway? Kinda had blood coming out of your wherever, didn’t you?”
I gave him a sarcastic smile.
“You were playing for an audience of one, I presume. I’ve heard old colleagues of yours like Nicole Wallace say they didn’t even recognize that guy. So was it an act? Did you go full gonzo because Trump had already hinted he might throw you under the bus, and you knew you had to do something he would eat up? Or because you thought you were already sunk and had nothing to lose?”
“I was reacting honestly to a horrific, untrue allegation. Wouldn’t you have been just as angry in my shoes?”
“But that’s not where you aimed your anger. You went off on a batshit crazy tear about liberal conspiracies and people seeking revenge on behalf of the Clintons and the rest of your tamper tantrum. That display of hyperpartisan rage should have been enough to tank your nomination all by itself. It was literallyinjudicious. ‘What goes around comes around!’ Think about that. You bluntly threatened your enemies that you would spend your years on the Court getting your revenge on them, and you stillgot confirmed. If that isn’t evidence of a Republican coup d’etat, I don’t know what is. But I guess that’s where we are in the Age of Trump. The days when Supreme Court nominees presented themselves as calm, nonpartisan, and sober — no pun intended — is long gone. Maybe you remember that — it was only about two weeks ago. Now we’re in an age when they have to emulate the President and behave like obnoxious, china-breaking oafs.”
For the first time I sensed an opening. He seemed genuinely offended. I aimed for the jugular.
“In the words of the late great Antonin Scalia: ‘Get over it.’”
Merrick’s lip curled into a sneer. “Yes, sage advice from a party that neverbore any grudges or spent decades plotting the obstructionism of the Democatic Party…..and the democratic process full stop, for that matter.”
I got him there. It felt good.
“Brett, the bottom line is you are the capstone to a decades-long campaign to pack the federal judiciary at every level with right wing ideologues, regardless of their qualifications or lack thereof. You’re a Republican hack plain and simple, one who can be counted on to do whatever the party requires, precedent, rule of law, and principle all be damned. Which is precisely why the GOP was so desperate to jam you onto the court at all costs.”
Ouch — that did hurt. Where did he get off calling me a hack just because it so happened that I thought the Republicans were always right and the Democrats were always wrong? So unfair.
IT MUST BE BE NICE, IT MUST BE NICE
The ghost watched as I chucked the crushed beer cans from last night into the trash. The smell was not helping my hangover, and I thought I might ralph. Not a good look on a new Supreme Court justice. Garland went on:
“I liked the way the Republican leadership clucked disapprovingly over Trump’s mockery of Dr. Ford. The truth is, they were happy to have him do their dirty work, because nobody does it better. That’s sort of a microcosm of their whole relationship, isn’t it? People always talk about why the Republicans won’t stand up to Trump. Hell, they don’t wantto stand up to him! They’ve never had a better frontman, one who’s equal parts attack dog and heat shield. Not to mix metaphors.”
“I think Sarah Sanders explained it well when she said he was just stating the facts.”
I didn’t think the ghost would go for that howler, but I gave it a shot anyway. He ignored me.
“I’ll admit I was surprised Trump had the self-discipline to play it cool at first, but eventually he made up for it, didn’t he? One of the greatest vulgarians in American history calling the protestors who cornered Jeff Flake‘very rude,’ or claiming that the thousands of demonstrators were paid, or saying what a scary time this is for men. Every time you think things are as low as they can go, Donny is always there with a posthole digger, isn’t he?”
“You’re talking about the President of the United States,” I said sternly.
“Exactly my point.”
“You’re out of line, Garland, and you know it.”
“I’m a ghost. Take it up with the union. To me, the only surprising thing about Trump’s reaction was that brief moment when he reportedly told aides that Dr. Ford sounded credible. But then apparently he flew off the handle, screaming that no one told him she would sound so good. I guess he’s not used to hearing people tell the truth. But of course, he has a vested personal interest in protecting sex offenders and discrediting their accusers.”
Again I started to defend myself, but he cut me off. (So rude!)
“And what the hell is wrong with Lindsey Graham? His transformation from Never Trumper to designated bootlicker already suggests there are photos of him in somebody’s safe deposit box. But that speech….Jesus. I guess that rabid Confederate garden gnome was playing to Trump just like you, but even so, that was bald-faced hypocrisy on a whole new level. ‘This is the most unethical sham since I’ve been in politics!’???? He was there for my non-confirmation non-hearings, right? What a fraud.”
“I thought Lindsey was very passionate in his defense of me, which I appreciated.”
Garland’s ghost slipped into a pretty good impression of the senior senator from South Carolina: “’This is hell!’” he spat, then laughed. “William Shatner never chewed the scenery that bad!”
That was really low. “Don’t go after Shatner,” I said. “What did he ever do to you?”
“He really is Strom Thurmond’s worthy heir, isn’t he?” Garland went on. “The question is, was he acting, like he trial lawyer he once was, or does he really believe that stuff? And which is worse? Same question I have about you.”
RAM JAM
I was getting bored with this. I decided to go on the offensive. It worked in Congress, right?
“Merrick, I really appreciate you coming here and haunting me and everything, but the fact is, I was investigated twelve ways to Sunday and they came up with nothing actionable. Soooooo, it’s been real….”
Ghost Garland laughed out loud. “Right. I thought the White House and the GOP would at least try to make that fake FBI investigation look halfway credible. But I guess I was naive: we should know by now that the Republicans no longer even bother with such pretense.”
I shrugged. “The Democrats wanted an investigation and they got it. Yet still they bitch. There’s no satisfying some people.”
Garland laughed even harder. “Even you can’t believe that wasn’t a total joke, Brett. Or Bart. Or whatever you wanna go by these days.”
“How about Mr. Associate Justice?” I snapped. He didn’t seem stung.
“Some forty relevant people offered potentially important information and received no response from the FBI. The White House wouldn’t let the Bureau look into your drinking in high school, or whether you lied about it now? What they hell were they looking into? They didn’t even interview you or Dr. Ford! Of course, now we know that Don McGahn had to tell Trump to severely constrain the investigation or you’d be sunk. I think ‘disastrous’ is the word he used, which is a pretty big tell. You know you’re up to no good when Donald Trump wants more transparency than you do.”
“Zzzzzz.”
“Very funny. For Collins and Flake to vote yes after that farce sealed their places in ignominy. Flake especially, after his oh-so poignant display of torment and sham heroism the week before. Did you see him frantically pushing that ‘close doors’ button in that elevator? I know a lot of people are furious with Susie, too, but her vote made a lot more sense if you don’t think of her as some feminist champion — like so many delusional progressives did — and instead as what that appalling statement of hers revealed her to be: a doddering, privileged old white lady who is every inch a member of the travesty that calls itself the modern Republican Party. This, after all, is the same Sue Collins who demanded Al Franken resign without even an investigation….the one who ran on the promise that she’d leave Congress after two terms and has now been there for six.”
“That’s low, attacking a woman,” I said, and Merrick gave me the side eye. I backed off.
“Call me a cynic,” he said, “but I knew — regardless of the results — that Graham, Grassely, Collins, and the rest of the riders in the GOP clown car were going to confirm you no matter what. Hell, a majority of Republican voters said you should be confirmed EVEN IF you were revealed to be guilty of sexual assault. Kind of like the polls where those same folks say collusion with Russia was fine if that’s what it took to beat Hillary.”
I started to answer, but the ghost stopped me.
“Don’t.”
DUMPING ME, DUMPING YOU
“Face it, old pal,” I said. “This was a case of ‘he said/she said,’ and the Senate simply found me more believable. QED, RIP, end of story, period dot.”
“That’s certainly how you guys wanted it portrayed. I got sick to my stomach watching newscasters talking about how ‘credible’ both Ford and you were. They kept using the phrase ‘she told ‘her‘ truth.’ Not ‘the’ truth — ‘her’ truth.”
“So?”
“So have these people never seen Law & Order? She was, by any standard, entirelycredible. I’m not even saying she was right — though I’m sure she was — I’m just saying that her allegations were believable and merited further investigation, which the GOP — again, tellingly — had to be blackmailed into pursuing. And even then they gave us a whitewash. You, by contrast, fumed and howled and — most damning — got flummoxed when asked why you wouldn’t support a proper investigation. I’m sorry, but that is NOT two equally credible people. And much like the 2016 campaign, the false equivalence again favored the villains.”
“So, fake news — is that what you’re saying?”
“Ha ha. The big question is why Trump and McConnell didn’t just dump you once your nomination was imperiled. I mean, they must have a laundry list of right wing ideologues just dying to be on the Court — guys just as doctrinaire as you but who don’t have the awkward baggage of being rapists.”
“Attempted rapist,” I corrected him, then caught myself. “Allegedattempted rapist.”
“I know the answer, of course: too close to the midterms. They should have vetted you better beforehand. But maybe that was outweighed by your not-so-subtle signals that you’d shitcan Roe and protect Trump from Mueller and everything else.”
I didn’t dignify that with a response.
“Speaking of which, how exactly did you go from being a slobbering attack dog chewing on Bill Clinton’s leg to arguing that a sitting president doesn’t even have to answer questions, let alone be subject to a subpoena or a criminal indictment?”
He went back to the topic at hand. “But there’s another angle on why they stuck with you, isn’t there? A reason they didn’t just cut their losses and find a more squeaky clean candidate.”
“Do tell,” I said. I was genuinely curious.
“Because it was important that they ram thiscandidate through. You. Precisely because you had that dirty laundry. Like I said, it used to be that Supreme Court nominees had to be damn near saintly. So the idea that the GOP could take the most partisan, vile, combative nominee in modern history — one burdened with credible allegations of being a sexual predator and all kinds of other questionable baggage — and jam him down our throats was the whole point. They were sending a message that they could put whoever they goddam please on the Supreme Court, and the rest of us just to have sit here and say “Thank you sir may I have another?” They needed to say ‘Fuck you, #MeToo’ and emphatically remind us that white male privilege was alive and well.”
I sighed. My tolerance for lectures on institutionalized privilege is pretty low. (Just so you know.) But he wasn’t done.
“And that belligerent diatribe you gave proved it. What an incredible example of entitlement in its most teeth-baring form. Here’s Professor Ford — the victim of a sexual assault — who behaves so respectfully, so solicitously, so humanely…so collegially as she put it. And then there’s you, with your wild-eyed, tear-filled, spittle-flying, self-pitying tantrum about how you were being robbed of your ‘rightful’ place on the Court, implying that you shouldn’t even have to address these allegations. Truly, it was an appalling display. There you were, with the help of the entire GOP, not to mention the President of the United States, appealing to white male grievance to gin up the idea that you were the real victim. You insulted the committee members, talked over them, badgered Senator Klobuchar — the daughter of a recovering alcoholic — over her own drinking habits, which if you ask me was the real giveaway about your misogyny. It was the most un-judgelike behavior anyone else in the business ever saw. And yet it turned the tide in your favor. Because that’s the kind of chest-beating neanderthal behavior that the right wing — and Trump especially — gobbles up. They were rock hard in Fox Nation when you were done.”
“Are you asking me to apologize for that?”
“I’ve yet to hear you apologize for anything. And I’m hardly the first to point out that a woman who behaved that way — Elena Kagan, let’s say — would have been ridiculed as a hysteric and carted off in a straitjacket. A woman would never behave that way because women know how they will be attacked and belittled if they do, and lack the sense of entitlement to think they can get away with it. Whereas men like you know very well that you can get away with it. I almost gagged when I heard you say afterward that you bore ‘no bitterness.’ Wow.”
“I meant it.”
“That’s like OJ getting acquited and saying he had no bitterness toward Nicole.”
“Comparing me to a murderer. Typical left wing hyperbole.”
“And there’s that non-partisanship you’re so proud of.”
RECUSE ME
I looked at my watch. I’d ceased being spooked by this ghost and begun to be merely annoyed. “Fox and Friends” was coming on soon.
“So now you’re on the Court. Congratulations.”
“Thank you.”
“But this much of what Trump said is true, Brett. Your life is ruined. Funny thing to say about a guy who just became a justice on the Supreme Court, but it’s a fact. You’re a household name now, and not a good one. You’re radioactive. Oh, within a certain right wing bubble you’re a hero — a martyr, even though you got what you want, which is really the opposite of martyrdom. But for more than half the country, including virtually the entire chattering class from which you sprang, you’re in a league with Harvey Weinstein.”
I ground my teeth and offered a cold smile. “I think I’ll find a way to live with that just fine, thank you very much.”
“You don’t think colleagues on the bench are going to look down on you like a skeezy little interloper? I know RBG was famously friendly with Scalia, but I find it hard to believe she won’t punch you in the nards the first time she passes you in the hallway. Remember during the campaign when she made that very mild public criticism of Trump — for which she later apologized — yet Republicans have never stopped howling for her to recuse herself from any case involving him?”
“Yes. I thought it was disgracefully unprofessional of her.”
“Yeah, well, anyway. Now that they’ve managed to ram you onto the Court, do you think they’ll demand that you similarly recuse yourself, after your foaming-at-the-mouth rant attacking the entire Democratic Party?”
“As I said in my Journal op-ed, I have promised to be independent and impartial.”
Merrick laughed again. “You best look out if the Democrats take the House. They’re going to re-open all these investigations and crawl up your ass with a microscope. They’ll impeach you with a simple majority, and that could be as soon as January.”
I scoffed. “They’ll never get 60 votes in the Senate to throw me out. Shit, they couldn’t get 51 votes.”
“For now. But a reckoning is coming. In the mean time they’re going to attack your credibility every single day…..and they’ve got millions of Americans eagerly watching and cheering them on, scrutinizing everything you do or say, ready to pounce. They’re going to make your life miserable.”
“My life is already miserable,” I said. “For one thing, I have to contend with fucking ghosts.”
Merrick turned somber. Almost as if he’d turned his attention away from tormenting me and toward something more melancholy. Elegiac, even.
“And that’s the most disturbing aspect of this. I think we may someday look back on your confirmation as the pivotal turn in our ongoing constitutional crisis. The GOP has certainly dealt a grievous blow to the credibility of the Supreme Court, but they’ve also weaponized it for a very specific reason. This isn’t just about remaking the judiciary and undermining Roe, protecting the 1%, eviscerating public unions, etc etc, although it’s about all that too.”
“What’s about then?”
“The Republican Party has succeeded in pre-positioning the key vote on the Supreme Court that can protect Donald Trump from just about everything. Hence their willingness to endure all sorts of criticism, risk a blue wave in the midterms, and behave in a manner even more brazen and shameless than usual, which is saying something. And protecting Trump is really just a subtask in defending their larger chokehold on power. They are shamelessly engaged in an authoritarian takeover of the United States — hypocrisy, democracy, the rule of law, and even common decency be damned.”
“And they say I trafficked in conspiracy theory.”
“But your ascent to the Court may prove to be the bridge too far for their subversion of the public will. You’re going to be there on public display for decades to come, and people are never going to forget it. If and when you cast the deciding vote that allows Trump to shut down the Mueller probe, or immunizes him from indictment, or excuses him from having to comply with a subpoena, or allows him to pardon himself and all his associates, what do you think the American people are going to do?”
I smiled. “Sit quietly and politely take it, I presume.”
Merrick raised a brow. “Don’t be so sure.”
And with that he seemed to vanish, fading slowly away. Or more precisely, he seemed to be transmogrifying (did I mention I went to Yale?), morphing into a new form. I could still hear his voice as it happened.
“Anyway, Brett, I have to go now. I’ll be turning this haunting over to another figure from your past. I’m confident she’ll do a bang-up job……”
As he spoke, his new form came into shape. A blonde woman in her early 50s, with large round glasses.
“Hi Brett,” she said, pleasantly. “It’s me. The ghost of Christine Blasey Ford. I’m going to be taking up residence here in your guilty conscience for the rest of your life. You miserable motherfucker.”
**********
Thanks Kemala Karmen, Doug Gordon, Jim Bernfield
For more essays, go to The King’s Necktie.
