Given the drama and anguish of the last months in the Church and the country, the average American and certainly the average Catholic might be forgiven for having possibly forgotten about the impending confirmation hearings for the 53-year old Supreme Court nominee Brett Kavanaugh. After all, there are the upcoming mid-term elections, the on-going investigation by Special Counsel Robert Mueller into Russian meddling in the 2016 election and, of course, the catastrophic scandal surrounding Theodore McCarrick, the horrifying Pennsylvania Grand Jury report, and the letter of Archbishop Carlo Viganò accusing Pope Francis of complicity in covering up McCarrick’s sexual misconduct and abuse of power.
Any thoughts, however, of overlooking the hearings on Judge Brett Kavanaugh were swiftly disabused by the theatrics, shouting, histrionics and apocalyptic tone all within the very first hour of the confirmation hearing that began on Tuesday morning. More than seventy angry and shouting protesters were arrested and removed from the committee room, and all of the Democrat members of the Senate Judiciary Committee made repeated efforts to postpone the hearing by lodging unsuccessful procedural motions and interrupting their Republican colleagues.
While the anger and raucous atmospherics eased in the hours that followed, the tone and direction of the hearing had been made clear. They point to an ugly week of questioning and bitter division that reflect the equally divided situation in the country and the understandable political posturing of Democrats trying to rally their base two months out from an election.
President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia on July 9, to be his Supreme Court nominee to replace the retiring Justice Anthony Kennedy. From the moment Kennedy announced his retirement in July, both sides of the political aisle in the U.S. Senate and the country set to work to bolster or derail the nominee. As it is, the Democrats have a tough task to stop the process.
Judge Kavanaugh is an experienced, seasoned jurist who just received the highest possible rating from the American Bar Association. That means he is certainly qualified professionally to be a Supreme Court Justice.
Equally, The Democrat members of the Senate Judiciary Committee face the potentially insuperable obstacle in the mathematics of opposing the nomination. Without a defection from the GOP caucus in the Senate, the Democrats simply do not have the votes to stop let alone defeat the expected up and down vote on Kavanaugh that Senate Majority Leader Mitch McConnell (R-KY) wants by the end of the month so that Kavanagh is in place before the start of the high court’s new term in October.
They cannot filibuster the nomination as they tried to do against the last SCOTUS nominee, Neil Gorsuch in 2017, as all that accomplished was to prompt the decision by McConnell to invoke the so-called nuclear option to bring the Gorsuch nomination to a vote. As was notedback in July, “The militant rhetoric from liberals flows from their distaste for Trump and their anxiety over the court, but it also reflects the frustration among Democrats that stopping a Trump nominee is a daunting task. This is thanks in large part to now-retired Senate Majority Leader Sen. Harry Reid, D-Nev., and his decision when Democrats were in the Senate majority to use the ‘nuclear option’ (a parliamentary procedure that killed the 60-vote majority needed to end filibusters of appointments) to push Obama nominees. Sen. McConnell embraced the option for the high court, meaning that Republicans only need a simple majority to approve a SCOTUS pick.”
What, then, is left to the Left?
Division and Drama
The strategy of the Democrat minority in the Senate and on the committee is essentially the same that they tried against Neil Gorsuch only with greater vehemence, vitriol and perhaps significantly more ammunition.
Since July, the writings, speeches, opinions – both legal and personal – and background of the nominee have been subject to intense scrutiny. This is true for every nominee in the modern era and above all a nominee presented by a Republican president. Nominees typically are targeted ruthlessly by special interest groups, as Judge Robert Bork discovered in 1987 when his infamous nomination process ended with his defeat in the Senate. Since then, his name has been a verb to describe the treatment of would-be Supreme Court Justices. In other words, Kavanaugh is likely this week to be “Borked.”
The Democrats on the committee and their leadership in the Senate have already been trying this strategy. It failed conspicuously with Gorsuch, but Kavanaugh has one of the most expansive paper trails of any recent Supreme Court nominee. He served for more than a decade on the D.C. Circuit Court of Appeals, five years as a lawyer in the White House Counsel’s office in the George W. Bush administration and was a member of the legal team of Special Counsel Ken Starr that led to the impeachment of President Bill Clinton in 1998-1999. Democrats on the hearing’s first day were especially vocal in complaining that 100,000 pages of Kavanaugh’s background had been placed under Executive Privilege and that another 42,000 pages from his time in the Bush Administration had been handed over only the night before.
Having failed – as they knew they would – to stop the proceedings with procedural maneuvers, Democrat members on the committee embraced the Bork stratagem with great enthusiasm. One by one, they minority members of the Senate Judiciary Committee spoke in apocalyptic terms about the nominee. They focused especially on his presumed threat to Roe v. Wade, minority rights, financial regulation and especially whether he would be an independent voice against the ambitions of the Executive Branch and its Chief Executive, Donald Trump, whom they openly despise.
Senator Dianne Feinstein (D-CA) already under intense pressure by the increasingly enraged progressive movement declared, “The impact of overturning Roe is much broader than a woman’s right to choose, it’s about protecting from governmental intrusion, who to marry, where to send children to school, medical care at end of life and whether or when to have a family.”
She was joined in similar rhetoric by the other Democrat members of the committee, in particular the liberal Senators Cory Booker (D-NJ) and Kamala Harris (D-CA) who are expected to run for the Democrat nomination for president in 2020 and therefore are positioning themselves with the party’s left-leaning base. Booker has already declared that he will vote no and has called blocking Kavanaugh a “moral moment,” adding that “you are either complicit in the evil, you are either contributing to the wrong, or you are fighting against it.” In his opening statement, Booker called Kavanaugh a tool for special interests. “It seems to so clear that in your courts,” he intoned, “the same folks seem to win over and over again: the powerful, the privileged, big corporations, special interests. Over and over again, the folks who lose are the folks who I came to Washington to fight for: working folks, consumers, women, immigrants, minorities, the disadvantaged, the poor.”
Harris continued to question the absence of documents and Kavanaugh’s adherence to “deeply conservative partisan agendas.” She declared that she was concerned whether he would “treat every American equally or instead show allegiance to the political party and conservative agenda” and that his “loyalty would be to the president who appointed” him and not to the U.S. Constitution.
The Nominee’s Own Words
For the Republicans, the parliamentary and numeric advantage is dependent on their ability to hold the Senate’s GOP caucus against any pressure on some of their members to defect. So far, they have reason to be confident. The Republican members of the committee spoke as would be expected in support of Judge Kavanaugh, but they are adopting a mostly low key defensive posture.
When at last Kavanaugh’s moment came on day one, he was introduced by former Secretary of State Condoleezza Rice who praised his record and his mind. “His intellect,” she said, “is unquestioned. His judgement is highly regarded. And I can personally attest to his character and integrity as a colleague.”
His opening statement was not filled with soaring imagery but, as throughout the nomination process, he ticked off all of the right boxes. He complimented his mentor and friend, Justice Kennedy, for whom he clerked. He described Kennedy as “a model of civility and collegiality. He fiercely defended the independence of the Judiciary. And he was a champion of liberty.”
Kavanaugh then said, “A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy…I don’t decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.” He also noted, “If confirmed to the Court, I would be part of a Team of Nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player on the Team of Nine.”
As with the future Justice Neil Gorsuch, Kavanaugh now must face absolutely withering attacks on his character, record, temperament, allegiances, faith and principles. The interrogation will be conducted by Democrat members determined to portray him as a radical threat to the country. As with all nominations, everything will depend on how Kavanaugh responds to the frontal assaults as well as the inevitable surprises and “gotcha” moments. With his long record of government and judicial service, he will face tough questions.
Ultimately, Kavanaugh’s seat on the High Court is in his own hands. The GOP members seemed content with Judge Kavanaugh’s opening statement, cautiously worded as it was. The Republicans know quite well that they can only run interference for him so far. It will be a nasty week but at the end of it, the Judge will be on his way to becoming a Justice or Donald Trump will have to find himself a new nominee.