Since Robert Bork’s “borking” 30 years ago, Senate Judiciary Committee hearings for a high court nominee by a Republican president have become predictable.
Democrats, who favor a “living Constitution,” meaning whatever they think the founding document ought to say, are pitted against “originalists,” who believe the document speaks for itself and should be taken as something only slightly less compelling than holy writ.
The hearings for Brett Kavanaugh are following the script with one addition. Democrats, who know they are unlikely to block Kavanaugh’s confirmation, are using it to stimulate their base ahead of the November election.
Time was when a “well qualified” endorsement by the American Bar Association, which Judge Kavanaugh received, was enough for most senators to vote in favor of a nominee. Not in a day when politics has invaded even funerals.
It’s amusing to read and watch how the media have tried to set up the hearings. A New York Times story worries that President Trump could “flip” the Supreme Court and slow down or reverse its move in a liberal direction. That’s the point of elections, isn’t it?
Democrats may also rue the day they got behind former Senate Majority Leader Harry Reid’s successful effort to invoke the “nuclear option,” allowing federal judges to be confirmed by a simple majority vote, rather than 60 votes, which had been the previous marker. Reid’s efforts did not include Supreme Court nominees.
Senate Majority Leader Mitch McConnell last year broadened the rule to include them. The Republican majority likely has enough votes to confirm Kavanaugh and might even get a Democrat or two on board, especially those who face tough re-election bids in states that Trump won.
If “impeccable” defines anything, it defines Judge Kavanaugh’s record as a jurist. While Democrats and the secular progressives who have recently organized demonstrations against his confirmation will try to paint him as a die hard, right-wing ideologue, his record says otherwise.
Kavanaugh issued more than 300 opinions as a judge on the D.C. Court of Appeals, most of which appeared non-controversial at the time. That he read the law correctly can be seen in the Supreme Court’s endorsement of his positions — 13 in the cases that were appealed to that bench. While Democrats on the Judiciary Committee complain they haven’t received all the documents they wanted — clearly a slowdown tactic — their staffs have reviewed more documents than any previous nominee to the Supreme Court.
The real focus of these hearings for Democrats will be on social issues and whether Kavanaugh believes all Supreme Court rulings are sacrosanct and must be respected. Primarily that means abortion, same-sex marriage and the remnants of Obamacare.
Using that argument, the Dred Scott decision that decided African-Americans had less value than whites and Plessy v. Ferguson, which said separate but equal facilities were OK by the Constitution, would still be the law of the land. When one is headed in the wrong direction, the worst decision is to keep going, instead of turning around.
Will Sen. Dianne Feinstein (D-Calif.) allude to Kavanaugh’s Catholic faith during the hearings? She did at last year’s confirmation hearing for Amy Coney Barrett to the 7th Circuit Court of Appeals. Feinstein employed an old anti-Catholic stereotype that claims Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution.
Favorite lines on opening day: “The Senate is the conscience of America,” uttered by Sen. Patrick Leahy (D-Vt.). Say what? And Sen. Richard Durbin (D-Ill.), claiming that people in his state ask him, “Are we going to be all right?”
Kavanaugh enjoys bipartisan support outside the Senate, but that won’t matter. It’s all about politics now, not the Constitution or the law. Kavanaugh is likely to win confirmation, but the behavior of some senators may further sour the public’s view of Washington.
Whether the hearings will affect voter turnout in November is unknown. Pollsters predict doom for Republicans, but their record of failure with past forecasts (note the 2016 election) does not give them much credibility.
