Kavanaugh's Confirmation Hearings: What's Wrong With This Picture?

Sep 6, 2018
Originally published on September 6, 2018 10:33 am

Having watched Capitol Hill for more than 30 years, I have now seen Senate confirmation hearings for an even dozen nominees to the Supreme Court. Some have had moments of high drama. All have had an air of meaning and consequence.

Until this week.

The current judiciary committee hearings on Brett Kavanaugh, the latest choice from President Trump, have featured more disruption and distraction and less substantial value than any such proceedings in memory.

The daily events include the systematic and almost ritual removal of shouting protesters who continue to infiltrate the hearing room in an effort to disrupt the process. While opposed to the nominee, the protesters were anything but helpful to committee Democrats straining to provide some scrutiny.

In fact, as Democratic committee member Sheldon Whitehouse of Rhode Island told NPR, the protesters were not only distracting but counterproductive.

"I think that the average independent voter, the labor family that voted for Trump last time but is now reconsidering, people like that don't think screaming in a hearing room is a particularly effective strategy or a signal of a party they want to belong to," Whitehouse said.

The next striking element from the outset was the attitude of committee Republicans toward the wholesale withholding of documents the committee as a whole had sought to examine.

It was remarkable enough that more than 40,000 pages of requested documents were not delivered until the day before the hearing began. But beyond that, the Trump administration had declared off-limits the records of Kavanaugh's time as White House staff secretary in three years of President George W. Bush's first term.

The committee's chairman, Iowa Republican Charles Grassley, said the White House material "did not pertain to Kavanaugh as a judge." He dismissed the nominee's own statement that his White House stint had been "formative" for him.

That stint was at a time when the White House responded to the terrorist attacks of Sept. 11, 2001, and made decisions about the treatment (and even torture) of suspected terrorists. The years in question also included presidential decisions regarding such topics as stem cell research, same-sex marriage and abortion. But of course, the lack of the documents in question makes it impossible to know what Kavanaugh may have thought, written or said about these topics, or whether they were even part of his purview at the time.

Without the relevant paper trail, Democrats had no chance of finding vulnerabilities in Kavanaugh's candidacy. Like Neil Gorsuch, who was last year's successful Supreme Court nominee, Kavanaugh was more than ready for his close-up. As a member of the conservative Federalist Society, Kavanaugh had decades of grooming for this moment. He had been preparing, in many ways, all his adult life.

Did you want to know his views on abortion, or issuing a subpoena to a sitting president, or a president's power to pardon himself? Of course you did. And of course you are not going to get them. Kavanaugh slipped into the armor of precedent, the refusal of previous nominees to discuss issues that might well come before the high court.

Kavanaugh called this the "Ginsburg rule," although in fact Ruth Bader Ginsburg in 1993 was willing to say she thought a "woman should decide" — implying support for abortion rights.

And if that made Kavanaugh seem evasive — if unfailingly charming — he had only to remind his interrogators that all eight of the current members of the Supreme Court had adopted more or less the same posture in their confirmation hearings.

So Kavanaugh was respectful but utterly unresponsive when California Democrat Dianne Feinstein tried to bore in on the questions of presidential privilege and executive pardoning power. Ditto when Democrat Dick Durbin of Illinois tried to pin him down on the role of "dark money" contributions in promoting his nomination — or the role of the Federalist Society in elevating his career.

"President Trump chose me," Kavanaugh said, relying on a bottom line that was hard to dispute.

Durbin tried to shame Kavanaugh over the withholding of his papers from the White House.

"Do you want to have a cloud over you?" Durbin asked.

But Kavanaugh skated away by noting how little control he had over the disposition of those records. Durbin noted that the man tasked with much of the relevant document review this summer had been William Burck, a Republican attorney who once worked for Kavanaugh. (Burck's clients now include Don McGahn, the White House counsel, who sat just behind Kavanaugh throughout the first two days of hearings.)

And so it went, through one Democrat's list of questions after another. For the Democrats, this is not an exercise in shaping the Supreme Court. It is a series of appeals to their supporters to sympathize with the futility of their predicament.

When it was the Republicans' turn, they used their time to give the nominee lots of space in which to shine. "What makes for a good judge?" asked Ted Cruz, the Texas senator and 2016 presidential candidate who is better known for tougher lines of inquiry.

Mike Lee of Utah, who ousted a less conservative Republican in a primary in 2010, referred to The Federalist Papers (essays written by Alexander Hamilton and others urging ratification of the Constitution) and asked which was Kavanaugh's favorite.

No, seriously, he asked that. And Kavanaugh had half a dozen possible picks he was ready to discuss, likening the challenge to naming a favorite among his children.

This is not to slight the insight of the Founding Fathers, mind you. Some of us might well delight in disquisitions on the separation of powers or the danger of factions. There is real educational value in all this, and it's great to have it discussed for a national audience.

But we know it's not everyone's idea of great television.

Suffice it to say, neither the Democrats' line of questioning nor the Republicans' was likely to make a lot of headlines or get much screen time around the country. That is discouraging news for the former and quite gratifying news for the latter.

Nothing that President Trump has done to date has been more popular among Republicans than his choices for the Supreme Court. The tax cuts may come close, at least for some, but they have not been the political ten-strike the GOP had hoped. Gorsuch and Kavanaugh, by contrast, are a one-two punch of near perfection for the Trump-voting coalition.

The two former clerks for now-retired Justice Anthony Kennedy are more consistently conservative than their mentor, more agile in debate and a generation younger. They could be a force on the court for the next 30 years.

But there is one other factor affecting the way these two nominations have been processed. Until last year, nominees for the Supreme Court were at least nominally vulnerable to a filibuster.

So even when a president's party had a majority in the Senate, he knew he needed at least a few votes from the other party — and perhaps a substantial number — to defeat a potential filibuster. That meant nailing down 60 votes, an imperative that served to moderate the selections of justices by presidents in both parties.

But in 2017, Senate Majority Leader Mitch McConnell of Kentucky decided the supermajority should no longer be mandatory. His party backed him to the hilt in this rule change.

The Democrats, when last in the majority themselves, had lowered the bar for confirming all other presidential appointments to a simple majority — 51 of the 100 votes in the Senate. McConnell simply pushed this to the max by including the Supreme Court.

That shift has drained much of the life from the confirmation process in general, including the hearings before the judiciary committee. At this point, there is no indication that any Republicans are in play on the Kavanaugh vote. It is more likely that several Democrats who are running for re-election this fall in states that voted for Trump will join in supporting the nomination — as they did for Gorsuch.

So the tension that crackled around confirmation hearings for past nominees, including President Barack Obama's Sonia Sotomayor in 2009 and Bush's Samuel Alito in 2005, has largely dissipated. We are not likely to see another nominee get battered beyond confirmation the way President Reagan's Robert Bork was in 1987. So, even with the unsettling cries of protesters being hustled out by Capitol Police, the current hearings seem tame by comparison.

Interest groups on both sides continue to buy the airtime and pour on the press releases to rail against Kavanaugh or praise him. But the urgency in all their pleading seems lost when you watch this creaky Senate mechanism working its will in its deliberate way.

Kavanaugh's ascent to the nation's highest court will matter a great deal. These hearings, sadly, do not.

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