The Kavanaugh Hearings: Spectacle, and Civics Lesson
As the Senate Judiciary Committee begins its four-day hearing on Brett Kavanaugh’s nomination to the Supreme Court, it should be interesting. The committee is closely split between 11 Republicans and 10 Democrats. Two of the latter, New Jersey’s Cory Booker and California’s Kamala Harris, are rumored to be considering runs for president in 2020. That raises the odds that the hearing will become a circus of hysterical rhetoric designed to appeal to an ever-more-extreme Democratic base. Make no mistake, their questions won’t be so much about Judge Kavanaugh himself as they are about getting sound bites on camera for future campaign ads.
Booker already made a splash by saying back on July 24 that those who were not fighting the Kavanaugh nomination were “complicit in the evil.” Besides sounding unhinged, such comments expose as farce the Democratic argument that they need a kitchen-sink document production from every executive branch office in which Kavanaugh worked in order to assess his nomination—the same nomination they opposed with such vehemence from the get-go.
Senate Democrats have cynically tried to characterize the most extensive document production in Judiciary Committee history as somehow deficient, applying a double standard to the well established process of review that occurred when Elena Kagan was nominated. They are also raising Cain over the absence of documents from Kavanaugh’s tenure as White House staff secretary—a non-legal position where he did not dispense substantive policy advice—while conveniently ignoring the fact that papers from Kagan’s tenure as solicitor general were not produced, despite their probative value for a Supreme Court nominee who never served as a judge.
The reality: The Judiciary Committee has been provided over 440,000 pages of documents—more than twice the volume produced for any prior Supreme Court nominee. And any honest and informed observer would admit that Kavanaugh’s over 300 published judicial opinions offer the best insight into the kind of Supreme Court justice he would make.
A look at the nominee’s actual record on the bench reveals a remarkably fair-minded jurist who goes where the law takes him and whose decisions diligently protect both the structural design and the individual rights established by the Constitution. His judicial opinions show him to be a legal heavyweight of the highest caliber. On at least 14 occasions, the Supreme Court has adopted positions Kavanaugh advanced in his opinions, whether he was writing for a majority on the D.C. Circuit or in dissent.
That is why Kavanaugh draws support from serious constitutional litigators and scholars who self-identify as liberal, including Lisa Blatt, who has argued more cases before the high court than any other woman, and Yale Law School Professor Akhil Amar. Both will testify on Kavanaugh’s behalf during the hearing. Their testimony will supplement a letter to the Judiciary Committee from a bipartisan group of 41 Supreme Court litigators (including Blatt) praising the nominee as “an outstanding jurist” and another from Robert Bennett, who represented President Clinton in the Paula Jones matter during the 1990s, noting Kavanaugh’s “innate sense of fairness” and calling him “the most qualified person any Republican President could possibly have nominated.”
But never mind the substantive record. Viewers of the hearing can expect the opposition’s subterfuge to run deep. Democratic senators will grill Kavanaugh on how he would rule on hot button issues likely to come before the court. Although the longstanding practice is to refrain from answering such questions, expect faux outrage from Democrats when Kavanaugh does the same.
As for his own decisions as a judge, get ready for a lot of Democratic speechifying about cases based not on their legal merit but on which party won. That in turn betrays their dangerous premise: A judge’s role is to put his or her thumb on the scale for a favored party when deciding cases, blurring the distinction between law and policy.
The upside (if there is one) to an increasingly sensationalistic nominating process is that these hearings can teach an important civics lesson about the proper role of unelected judges in our system of representative democracy. We can expect Kavanaugh to manifest the thoughtful, articulate, judicious qualities observed by so many who know him. That in turn will expose the smear campaign against him for what it is: the desperation of Democratic senators who see courts as a vehicle to impose their policy preferences, and who are tripping over each other to position themselves further and further to the left.
The truth, of course, is Kavanaugh is a mainstream jurist. He is widely respected by members of the bar across the ideological spectrum who recognize his fairness, independence, and decency. He adheres to the Constitution and listens to all sides of an argument before applying the law wherever it takes him. That is the proper role of a judge, and that is exactly what the American people expect from a Supreme Court justice.