The death of Justice Antonin Scalia, the refusal of Republicans to give Judge Merrick Garland a hearing prior to the 2016 Presidential Election, and the retirement of Justice Anthony Kennedy has given the President Donald Trump an opportunity to tip the ideological balance of the Supreme Court for generations to come. The consequences of this decision are nothing short of monumental, and makes the short-sighted decisions made in favor of political expediency all the more glaring in hindsight.
Ideally, judicial confirmation hearings would be cooperative searches for truth and consensus, when both parties properly vet nominees for the highest court of the land. Unfortunately, we do not live in an ideal world. Both parties have turned it into a political bloodsport and circus. Still bristling from the treatment Garland had received at the hands of Republicans, Senate Democrats mounted a fruitless filibuster against Trump’s first nominee, Neil Gorsuch.
Predictably, it was defeated by the Republicans, and in their annoyance they lowered the threshold for advancing nominees to the Supreme Court from 60 votes to a simple majority. Gorsuch was seated, and the Democrats lost a valuable tool they could have used in a far more pivotal choice. Gorsuch and Scalia differed very little, and replacing a solid conservative with another solid conservative did not dramatically alter the future. Replacing Kennedy, who was a valuable swing vote for years, is quite another story.
To any conventional Republican administration, Kavanaugh is nothing short of impressive and would be at the top of their list. He is a graduate of Yale Law School. Like Gorsuch before him, Kavanagh was a clerk for Justice Kennedy. He worked as an assistant to independent counsel, Kenneth Starr, during the investigations into the Clinton Administration, and after that he became George W. Bush’s staff secretary. He demonstrated his conservative bonafides through his work as as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
A Republican senator would be hard-pressed to say he isn’t eminently qualified, which is rare among the people Trump has hired so far. Democrats naturally balk at the notion of any conservative justice on matter of principle, but an impressive resume should survive scrutiny.
And yet, Republicans have been less than forthcoming with releasing the mountain of documents pertaining to his time as staff secretary. Mere hours before the hearing, the lawyer for former president George W. Bush dumped 42,000 pages of documents onto the Judiciary Committee. The hearing itself was full of political posturing by Democrats and Republicans alike that ultimately undermined the legitimate concerns voiced during the spectacle.
Judge Brett Kavanaugh may be a good man. The reports of him being a great carpool guy and a splendid girls basketball coach are likely true. The attacks on his character demeaned those who made them. Yet all this does not prove he is a good Supreme Court Justice any more than it makes him a good brain surgeon.
His belief that the United States v. Nixon ruling, which unanimously ruled against the President and his attempt to claim executive privilege to avoid turning over subpoenaed tapes, may have been “wrongly decided” is particularly troubling when you take into account that the President has had his former campaign chairman convicted of numerous felonies and pleaded guilty to conspiracy against the United States. During the hearing Kavanaugh refused to recuse himself from deciding cases involving the investigation of President Trump, which could very well be brought to the Supreme Court by the Special Counsel in the foreseeable future. This should raise concerns for everyone regardless of political creed, and yet it does not. Only one side was truly interested in asking questions and getting answers: the losing side. And it was not Kavanaugh’s job to make their case for them, against him.
The other charges made against him have proven to be dubious. The claim that Kavanaugh said birth control pills are “abortion-induced drugs” is false: he was summarizing the argument of one of the plaintiffs in a case he was overseeing, in which they believed birth control was “abortifacients”. The perjury arguments against him also seem to similarly ignore context, and the greatest fault Kavanaugh seems to have is not being concise enough for senators desperate for the right “gotcha” to impede his path to the Supreme Court.
Democrats are reading too much into potential errors in his record and imagining patterns when there aren’t any. They are a political party desperately looking to make a mountain out of a molehill in hope of stopping the appointment. Senator Cory Booker’s silly ‘I am Spartacus’ moment and Senator Kamala Harris’s vague questions about whether or not Kavanaugh spoke with anyone from the Kasowitz’s law firm failed to evoke any illuminating answers from Kavanaugh. The letter brought forward by Senator Diane Feinstein alleging Kavanaugh committed sexual assault during his high school days will take time to investigate thoroughly – time the Republicans aren’t likely going to give – and for whatever reason she did not bring it up during the hearing in spite of being notified of it back in July.
Kavanaugh will be seated on the Supreme Court. Unless there are substantial developments and corroborated evidence produced regarding the eleventh hour sexual assault allegations, the Republicans will be adamant on pushing him through. The fact that a plurality oppose him and he was nominated by an unpopular president doesn’t matter: this is one of the consequences of losing an election. Yes, Senator Mitch McConnell and the Republicans don’t play fair, but it would behoove the Democrats to swallow their bitterness over Garland and start playing political chess instead of political football, because they aren’t scoring any points and keep forfeiting or missing opportunities.