Your hot-seat awaits, Mr. Kavanaugh.
Amid protests and Democrat complaints, the Senate confirmation hearing on Brett Kavanaugh began on Tuesday morning. President Donald Trump’s second Supreme Court nominee faces four grueling days of questioning this week from Republicans, who will likely gush about everything he says, and Democrats, who will grill Kavanaugh on abortion, gun rights, the Affordable Care Act (aka ObamaCare), and any other wedge issue they can think of.
“If Americans really knew what [Kavanaugh] intends to do to our republic, perhaps many more Americans would be speaking out against his nomination,” declared Cory Booker (D-N.J.), a member of the Judiciary Committee, who signaled the Democrats' intentions with Kavanaugh’s nomination. Even if the Democrats can’t stop him, they intend to demonize the man in order to bolster support among their base for the upcoming mid-term elections.
The 53-year-old Kavanaugh is a graduate of Yale and Yale Law School and has the Ivy League bona-fides that liberals demand. He has spent the last 12 years on the U.S. Court of Appeals for the District of Columbia — a finishing school of sorts for the Supreme Court. Kavanaugh has issued more than 300 opinions and dissents on a wide variety of issues over that time. Those writings will give Democrats a lot of ammunition with which to play the same, “How will you rule on this?” game, that they played with Neil Gorsuch in last year’s hearing.
Many Democrats have already confirmed their “no” votes on Kavanaugh, even before they hear him speak to the Judiciary Committee. Among these certain no votes are Tammy Baldwin (D-Wis.); Bernie Sanders (I-Vt.); Chuck Schumer (D-N.Y.); Kamala Harris (D-Calif.); Richard Blumenthal (D-Conn.); Bob Casey (D-Penn.), and Patty Murray (D-Wash.).
Red-state Democrats who are facing reelection this year may face pressure to support the president’s nominee. They include Montana’s Jon Tester, Florida’s Bill Nelson, and Indiana's Joe Donnelly, all of whom may vote for Kavanaugh’s confirmation.
Two pro-abortion Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, bear watching. Jeff Flake of Arizona, a harsh critic of President Trump, could be swayed into a no vote as well.
With John McCain’s recent death, the GOP majority is even slimmer than it was before. The GOP must hold on to all of their votes and hope some Democrats cross party lines in order to secure the nomination.
Kavanaugh would be wise to use the so-called Ginsburg Standard when answering questions from the Judiciary Committee. When testifying before the same committee in 1993, current Justice Ruth Bader-Ginsburg famously stated, “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.” In this way, Ginsburg avoided direct questions about specific issues. It was a smart strategy and several justices including Elena Kagan, Sonia Sotomayor, Stephen Breyer, John Roberts, and Samuel Alito all used their own variant of the strategy in their own confirmation hearing.
Until 1987, Supreme Court nominations were generally rubber-stamp affairs, with the president selecting and, pretty much, getting whomever he wanted confirmed, usually unanimously. The last two vacancies, Antonin Scalia, who died in 2016 and Anthony Kennedy, who announced his retirement earlier this year, were both confirmed unanimously.
But in 1987, that all changed with the nomination of Robert Bork by President Reagan. Democrats, led by Ted Kennedy of Massachusetts, used extreme and sometimes underhanded methods of denying Bork the seat on the high court. Shortly after the nomination was announced, Kennedy said on the floor of the Senate, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution.”
Kennedy’s speech and the vicious Democrat criticism of Bork shocked the GOP of the time. They did not respond in any meaningful way to the attacks on Bork, which even included the press publishing the nominee’s video rental history. The attacks on Bork went unanswered for the most part, and he went on to lose the confirmation vote 58-42 in the full senate. Reagan would then nominate Kennedy, who was described as a swing vote, unanimously.
Since then, every Supreme Court nomination who comes up has become a death struggle for Democrats, who look to the legislative branch as an ally in getting questionable laws passed by judicial fiat, instead of through the legislative process. Republicans, on the other hand, have been reluctant to fight fire with fire, offering only token resistance on far-left nominees such as Ruth Bader-Ginsburg, Sonia Sotomayor, and Elena Kagan.
This death struggle over judicial nominees is a creation — in full — of the Democrat Party. They started it when they began to use the high court to make laws instead of ruling based on the Constitution. Democrats aren’t looking to find a good judge. They are looking only for someone who will help them with their agenda.
Photo of Kavanaugh family: White House