Kavanaugh, Precedent, and Hypocrisy

BY: ANDREW SVEDA, SENIOR CONTRIBUTOR

The past few years alone have vividly depicted just how partisan Supreme Court nominations have become.  But it didn’t used to be that way. It was not too long ago that, in Justice Ruth Bader Ginsburg’s words, the spirit and “atmosphere” of the confirmation procedure “was truly bipartisan.”  It may shock Americans today to consider that Ginsburg, a staunch liberal on the Court, was confirmed in a 96-3 vote in 1993 or that the conservative “firebrand” Antonin Scalia was confirmed unanimously only seven years earlier.  These justices were by no means moderates, but both sides of the aisle were able to put aside their differences and create an atmosphere “where professionalism comes first,” focusing instead on supporting the most qualified individuals for this critical and weighty job.  

If such conditions existed today, there would be no question if Brett Kavanaugh had enough votes to be confirmed.  He is extremely qualified—having served on the “second-most-powerful court in the country” (the D.C. Circuit U.S. Court of Appeals) for twelve years and as Staff Secretary for George W. Bush, not to mention clerking for Justice Anthony Kennedy and teaching at Yale (his alma mater), Harvard, and Georgetown.  This “gold-plated resume,” as one journalist put it, and his outstanding ability have prompted conservatives and liberals alike to proclaim and defend him as “unquestionably qualified by his extraordinary intellect, experience, and temperament.” USA Today Supreme Court correspondent Richard Wolf even championed him as possibly “the most qualified Supreme Court nominee in generations.”  No wonder Supreme Court Justices like Clarence Thomas, Elena Kagan, and Ginsburg and Senators such as Joe Donnelly (D, IN) and even Dianne Feinstein (D, CA) have either denounced, expressed dismay, or apologized to the nominee for his unreasonably harsh treatment during his hearing—from Senators trying to exploit the process for political gain and prestige to the multitudes of protesters in the actual hearing room.  

Obviously, Feinstein’s apology to Kavanaugh “about the circumstances” is by no means whatsoever an approval of him.  In the minds of many liberal Democrats, some type of civil resistance to Kavanaugh is deemed absolutely necessary, believing that both the nominee and the process surrounding him are uniquely abnormal and potentially even dangerous to the future of the Supreme Court and thus the nation.  Democrats claim that this is unlike anything they have every seen, but Kavanaugh is in fact following the time-honored precedents of past nominees.

One of the first objections by Schumer and the Democrats was that of nominating and confirming a justice during an election year, especially after the GOP blocked Obama’s nominee, Merrick Garland, in 2016 for the exact same reason.  As I have written before, it was undeniably wrong for the Republicans to not give Garland a vote let alone a hearing, but this certainly does not vindicate the Democrats in seeking revenge and imitating this poor behavior. By doing this, they themselves become hypocrites as well since they supported Garland despite the coming Presidential Election.  Furthermore, nominating Supreme Court Justices during a midterm year (and before Election Day) is rather common in American history. In fact, this practice has confirmed eleven judges to the Supreme Court over the last century, the most recent of which includes Kagan and Breyer— who were nominated by Obama and Clinton, respectively. Instead of seeking revenge, the Democrats must accept that Trump, like those before him, has every right to nominate a judge during this phase of his presidency.

Besides this, Kavanaugh’s process has also mimicked those of the past in regards to document releases and the nominee’s responses to Senate questioning.  Specifically, despite Schumer’s suggestion that Kavanaugh’s nomination procedure has been “the least transparent…in history,” close to 500,000 pages of documents have been released, allowing the “members of this Judiciary Committee,” in the words of a columnist from The Washington Post, to “know far more about Kavanaugh that they’ve known about any other nominee.”  As Democrats call for the release of documents pertaining to his time in the White House as Staff Secretary, it should be remembered that “these documents would tell us almost nothing about his judicial views.”  Moreover, the process to release these documents, which has now received much criticism by liberals, is in actuality the same as it was when Kagan was nominated to the Court; the Democrats were perfectly fine with the fact that—in addition to lacking any “experience as a judge”—not a single document pertaining to her days in the Clinton White House was released to the Senate during her confirmation process.  In short, these documents are virtually “irrelevant” and serve merely as an excuse to delay the confirmation vote. Similarly, Democrats’ (and some Republicans’) disdain for Kavanaugh’s vague language surrounding the “precedent” and “settled law” originating from Roe v. Wade can, understandably, be seen as concerning to many.  But Democrats appear to have forgotten that Kagan, “similar to…Supreme Court nominees” before her, consistently “deflected questions” regarding topics such as “abortion and gun rights.”  In a shocking mirror image of Kavanaugh, Kagan simply responded to these questions by merely “describing Supreme Court precedents,” calling decisions such as D.C. v. Heller “settled law” and “binding precedent.”  Thus, Kavanaugh’s performance in his confirmation hearing has been anything but unusual or uniquely obstructionist.

But in reality, Kavanaugh is far from wanting to repeal Roe v. Wade; just take a look at a 2017 decision where, although siding against a teenage illegal immigrant seeking an abortion in Texas, he did not concur with another judge who wrote that illegal immigrants do not have a right to an abortion.  And it’s also true that, according to Harvard Law Professor Jeannie Suk Gersen, even prominent liberal constitutional scholars, such as John Hart Ely, and, to some extent, Justice Ginsburg, have questioned “the legal basis for Roe,” but that is beside the point.  The reason for all of these complaints is not that they highlight unconventional attempts to push through a Supreme Court nominee, but that the Democrats are extremely frustrated that in addition to not getting Garland confirmed, the Republicans will be able to shift the court further right.  They claim that their last stand against Kavanaugh is for the sake of the Court and the nation, that Kavanaugh will destroy Anthony Kennedy’s legacy. But if they were so concerned about preserving the balance of the Court or legacies, why would Obama have nominated Garland, a solid liberal who would have been between Kagan and Ginsburg ideologically and consequently shifted the Court’s median the furthest left since at least 1937 (when Martin-Quinn scores originated), to replace Scalia? The Court’s shift from Kavanaugh, if confirmed, would be less than that produced if Garland had been nominated, but the Democrats still cannot get over the fact that Garland will not be on the Court. Instead of sinking into partisan politics, the Democrats could instead attempt to gain the moral high ground by trying to rekindle bipartisanship and focus on Kavanaugh’s performance and experience rather than seeking to categorize him as “outside the mainstream” when he clearly is not. Kavanaugh is an extremely qualified judge, and he is, per an analysis by political scientists and lawyers from Stanford, Harvard, and University of Chicago Law School, significantly less conservative than Gorsuch (some writers like David French of the conservative National Review have been very unsettled that Trump merely selected “a man that any Republican President would have nominated”).  He is a brilliant, exceedingly experienced, and talented judge, “a true intellectual” in the words of Yale professors.  

Nevertheless, there is one thing about Kavanaugh that is certainly unexpected, and that is the recent sexual assault allegations against him.  Much remains uncertain about the validity of Dr. Ford’s (the accuser’s) argument; on one hand she passed a polygraph test while on the other she is foggy on crucial details like what year it took place, exactly where it happened, and how many people were witnesses to what happened, not to mention debate over the accuracy of polygraphs or that sexual assault victims’ memories of these horrendous events tend to be extremely vivid even decades later.  It is also absurd and irresponsible that Feinstein waited until the final minute to release the accusation that she was aware of for a month and a half. Notwithstanding, this charge must be dealt with by the Senate in a swift but thorough manner. An FBI background investigation (suggested by Ford’s lawyer; Kavanagh has had a total of six FBI background checks throughout his career) would not be uniquely valuable considering the sheer lack of even key facts and that “the FBI does not provide commentary or issue judgments” on the interviews it conducts.  This will not achieve anything greater than a conventional Senate hearing, so it only makes sense for Sen. Grassley (R, IA) to conduct a hearing, be it public or private.

As Kavanaugh’s confirmation hangs in the balance, many questions remain unanswered pertaining to Ford’s accusations, but this is for certain: if acquitted of allegations, as I expect he will, Kavanaugh is more than worthy of a seat on the Supreme Court.

Image Credits: https://www.thedailybeast.com/gop-balks-at-dem-demand-for-kavanaugh-prep-school-pal-mark-judge-testimony