Terry H. Schwadron
Sept. 7, 2018
Only a few of the questions and answers with Supreme Court justice nominee Brett Kavanaugh actually will prove important. Despite hours of Democratic challenge and hoots from protesters at the hearing, Kavanaugh will be confirmed.
The Republicans have the votes, and Republican senators are being as blasé as possible about the hearings that will send the country’s top judicial panel in a partisan, conservative bent in consideration of a host of social issues. As a group, they seem as if the hearings are a foregone conclusion; as individuals, they seem to be competing to see who can be the most complimentary.
Among the Democrats, there is a lively peppering of questions and challenges, there are wails (including mine) about the withholding of tens of thousands of documents from when Kavanaugh served in the George W. Bush White House, there are direct appeals to the candidate to declare his positions on such issues as abortion, health care, consumer protection and protective interpretations of the law to favor the presidency.
The hearings are messy and uncomfortable even to watch for more than 15 minutes at a time. There is such an obvious partisanship to the hearings that they seem less than useful.
In the end, however, the resistance effort will prove fruitless. Replacement of Sen. John McCain of Arizona with Jon Kyl restores a two-vote majority for Republicans; the pressure campaign on the four Democrats from red states is increasing, making a solid Democratic front less than positive; even the most moderate Republican, Susan Collins of Maine, seems persuaded that Kavanaugh recognizes that Roe v. Wade is “settled law.” There is no longer any chance for a filibuster, because that went away in the resistance to confirming Neil Gorsuch last year.
Indeed, people are breathlessly awaiting a misstep by Kavanaugh as to whether “settled” law means it was a good decision or a bad one, for example.
On the hot seat, Kavanaugh is good at his responses, even-tempered, logical even tutorial in tone. Even with the challenging questions, Kavanaugh seems to come most alive when he is discussing the appropriate role for the judiciary or the intricacies of constitutional law.
It is close to saying that if you don’t have the votes, we should just regard such a confirmation as a kangaroo hearing. It’s political theater, not an actual reflection of any democratic process we understand.
A few questions were flustering for the nominee. One set of questions by Vermont Democrat Patrick Leahy about emails stolen from his office in 2004 and slipped to Kavanaugh, then in the White House. No one saw that coming. But it is unlikely to change anyone’s mind. Then, hours later, Sen. Kamala Harris(D-CA) opened her questioning with a blistering line of inquiry about whether he had ever spoken with anyone at Kasowitz, Benson & Torres — the law firm of President Donald Trump’s personal attorney Marc Kasowitz — about the ongoing investigation by special counsel Robert Mueller. Kavanaugh dodged, but never answered the question.
Rhode Island Democrat Sheldon Whitehouse was a leading voice in declaring the hearings a sham and next to useless, since the results are pre-ordained.
Actually, the best part of the whole thing was the continuing, unresolved blow-up between Republicans and Democrats on the question of Kavanaugh documents made available to committee members, and why tens of thousands of them were declared “confidential” and either withheld or stamped for confidential committee consideration only. As theater, it at least featured harsh confrontations masked in gentlemanly language as if it were a Talmudic debate over the meaning of “confidentiality.”
Among the documents made public were one reflecting thoughts about race and law, which Sen. Cory Booker (D-NJ) said he would publicize despite the committee ruling against doing so, and one advising about abortion policy, which Sen. Diane Feinstein (D-CA) questioned because it seemed to indicate that Kavanaugh believes that the Court could overturn abortion rulings, but that he explained more narrowly. Booker led the attack line that Kavanaugh was selected because he believes that presidents should not face criminal or civil charges. Sen. Kamala Harris (D-CA) won the irony prize by getting Kavanaugh flummoxed about whether there has ever been a law governing male health issues to highlight differences with abortion policies.
With 12 years as a federal judge and a seat on the Court of Appeals in Washington, Kavanaugh clearly is a qualified judge. His understanding of the law seems wide and deep, his ability to listen and hear complex arguments seems real. Hey, on his appeals court role, he sits next to Merrick Garland, the Obama nominee who never got the chance to show the same facility with the law.
The problem is, was and remains that Kavanaugh’s outlook is basically a strict constructionist viewpoint that leans Conservative in a society that increasingly wants to move towards more liberal views of social issues. He is qualified, but he uses his abilities to find consistently for business interests over consumers, for wider gun ownerhip, and limiting for abortion or health care.
Therein lies the problem. We have two nations struggling to remain as one. We have a single Supreme Court at the top of the judicial food chain that we have persuaded ourselves is supposed to be a non-partisan referee. We have given the nine justices robes of seriousness and the responsibility to safeguard the U.S. Constitution, as if that is something that can be handled like a rulebook or even a self-modernizing set of guidelines.
The problem is that we don’t have a singular outlook as a country or a culture, and the weirdness of our political system requires that new justices come along asymmetrically with the arrival of new presidents who must appoint them. If Obama had offered the same Brett Kavanaugh as a nominee, the knee-jerk Republican majority in the Senate would have said no, just as they did for Garland.
If we are going to recognize realistically that the Court will prove political, we should assign them term limits, just as we do for president. If the country is going to wobble over time from left to right and back again, perhaps the Court should do so as well.
Democrats in this case may be doing their best at forcing a challenge, but unless the process is realistically non-partisan, it lacks any sense of respect. Anyone still talking about impeachment of the president and a trial in the Senate should be forced to watch this confirmation hearing for an hour to understand that these are show performances, not real governing.