So far Brett Kavanaugh’s Supreme Court confirmation hearings have served, if not to clarify Kavanaugh’s positions, at least to dramatize the poisonous political atmosphere engulfing the United States.
Kavanaugh, polished, prepared, and warm, delivered judicious non-answers to hot-button questions with a courteous, friendly demeanor. He talked about coaching his daughters in basketball and told the committee he hoped to be remembered at a “good dad.” Meanwhile, in the background, protester after protester was hauled out of the room screaming.
The poised, suit-wearing white men (mostly) in the front of the room looked vaguely troubled now and then as irate women (mostly) were removed by the police.
What’s all the trouble about? Watching Kavanaugh’s masterful performance, it was hard to tell. After waiting through seven hours of debate and seventy arrests before he finally gave his opening statement on Tuesday, Trump’s nominee spent all day Wednesday declining to state what he really thinks about abortion, gun control, or even his own writings indicating that he believes a sitting president should not have to endure a criminal investigation or answer a subpoena. (That last item had to be at the top of Trump’s mind when he made his nomination.)
Senator Dianne Feinstein, Democrat of California, led off the questioning on Wednesday, probing Kavanaugh on the issue of guns. Her office, she said, helped craft a piece of gun-control legislation that Kavanaugh voted to overturn when, as a judge on the U.S. Court of Appeals in the District of Columbia, he wrote a dissent that rejected the district’s ability to regulate semi-automatic weapons.
Kavanaugh employed the same my-hands-are-tied argument again and again.
In the cordial back-and-forth that followed, Kavanaugh explained, regretfully, that while he is as dismayed as anyone by school shootings, “If a type of firearm is widely owned in the United States,” you can’t ban it. Most handguns are semi-automatic, he added, so the D.C. ban on semi-automatic rifles is a violation of “the history and tradition” of gun ownership.
That reasoning, while softly stated, could open the door to overturning local gun-control measures all over the United States.
Kavanaugh employed the same my-hands-are-tied argument again and again. One advantage of declaring loyalty to precedent, history, and tradition is that it allows one to distance oneself from the real-world effects of legal decisions.
Make no mistake, Kavanaugh, darling of the Federalist Society and a partisan Republican activist, will change the face of America for a long time to come if he replaces retiring swing-vote Justice Anthony Kennedy.
Trump, before nominating Kavanaugh, promised to choose a judge who would overturn Roe v Wade. Kavanaugh won’t come out and say he supports overturning Roe, but his record tilts toward heavily restricting access to abortion.
And then there is Kavanaugh’s long record of partisanship. When he worked with Ken Starr on the Monica Lewinsky case, he urged Starr to press Clinton with a series of graphic sexual questions designed to humiliate the President. Later, he worked on George W. Bush’s legal team in Florida, trying to stop the recount in the razor-thin 2000 presidential election.
On corporate rights, including deregulating the Internet, unlimited campaign spending, and other issues of importance to big business, Kavanaugh has shown himself to be a reliable ally of the powerful.
Yet in his hearing, on issue after issue, the discussion followed the same pattern. Kavanaugh portrayed himself as a thoughtful and independent judge who relies entirely on precedent, and does not allow himself to be swayed by his own personal opinions.
Kavanaugh has shown himself to be a reliable ally of the powerful. Yet in his hearing, on issue after issue, he portrayed himself as a thoughtful and independent judge who relies entirely on precedent.
In a back-and-forth with Senator Amy Klobuchar, Democrat of Minnesota, he carefully sidestepped the urgent timeliness of his Minnesota Law Review article stating that, having helped Ken Starr pursue President Clinton in the Monica Lewinsky investigation, he now believes that a sitting President should not have to endure such distractions.
“I didn’t take a position on the constitutionality” of investigating a sitting president, he said. His idea that Presidents ought to be granted immunity from civil and criminal investigations while in office was “just a suggestion for Congress to consider.”
Point taken.
The rush to confirm Kavanaugh, and the Republicans’ refusal to release thousands of pages of documents from his days in the Bush White House, raises the question: what are they hiding?
The most damaging information that came to light Wednesday involved emails stolen from Democrats in the Senate by a Republican staffer, Manuel Miranda, to help inform President Bush about questions the Democrats planned to ask his judicial nominees.
Kavanaugh told the Senate judiciary committee he never saw those emails when he was confirmed to the court of appeals.
But Senator Patrick Leahy, Democrat of Vermont, said that the emails were part of the load of documents Kavanaugh handled that were given to the committee—and evidence that Kavanaugh perjured himself. "I'm concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me,” Leahy told Kavanaugh. “And that would contradict your prior testimony.”
Outside the hearing room, protesters organized by the Women’s March dressed in bonnets and cloaks from The Handmaid’s Tale.
Meanwhile, outside the hearing room, protesters organized by the Women’s March dressed in bonnets and cloaks from The Handmaid’s Tale—Margaret Atwood’s dystopian novel, now a hit TV series, about a society in which lower-class women lose control over their reproductive lives and become slaves to a ruling class of men and their infertile wives.
“You do not have the confidence of the American people!” an African-American man yelled as he was dragged out by the shirt.
Senator Orrin Hatch, Republican of Utah, complained about the “insolence” of the protesters, and the hearings went on.
It seemed all but certain the Republicans would confirm Kavanaugh, using their one-vote Senate majority.
They taunted Democrats on the committee for their efforts to gain more time. Senator Lindsey Graham, Republican of South Carolina, denounced Democratic “hypocrisy” for seeking to delay the hearing and Senator Ted Cruz, Republican of Texas, sneered that Democrats were seeking to “relitigate” the 2016 elections.
Indeed, the Republicans, who were more than willing to let the Supreme Court function with only eight justices until after the 2016 election, would not give the Senate Democrats a few extra days to read the 42,000 pages of material dumped on them the night before the hearings began, and have already announced their plans for a hasty vote on Kavanaugh’s confirmation before the new Supreme Court session starts on October 1.
But as the loud “noise of democracy,” to use Senator Dick Durbin’s term, continued inside and outside the hearing room, it was clear that the fighting will not be over any time soon.