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Firing Blanks

eye on the news

Firing Blanks

The furious Democratic attack on Brett Kavanaugh had little substance behind it. September 7, 2018
Politics and law

There’s an old adage in the legal world: when the facts are against you, pound the law; when the law is against you, pound the facts; when the law and the facts are against you, pound the table. That about sums up the Democrats’ approach to Judge Brett Kavanaugh’s confirmation hearings. They can’t find anything to impugn his qualifications, which are equal to that of any recent Supreme Court nominee. Nor do they have a coherent theory of jurisprudence to challenge Kavanaugh’s textualism in statutory interpretation and originalism in constitutional law.

But to give credit where it’s due: Democratic senators excelled at pounding the table. On the first day, traditionally given over to remarks that put the nomination in historical and constitutional perspective, the Democrats spent their time demanding an adjournment until documents from Kavanaugh’s time as staff secretary in the George W. Bush administration were produced. Never mind that these documents are of limited relevance, given that the staff secretary is the White House’s document-traffic cop, tasked with summarizing the views of others and packaging them for the president. In past hearings, executive documents far more probative of legal views were withheld on the basis of confidentiality, including Antonin Scalia’s memos as assistant attorney general in the Office of Legal Counsel and Elena Kagan’s as Solicitor General.

But arguing about documents rather than Kavanaugh’s qualifications or his judicial philosophy has a political purpose. It reframed the confirmation hearing in a way that would appeal to the Democratic base, while not causing difficulties for red-state Democrats pursuing reelection. Making a circus of the first day’s hearing signals Democratic opposition to Kavanaugh without taking substantive steps—like walking out—that would discredit the party with the broader public. Left-liberal groups helped, too, by sending in protesters to get arrested and continually disrupt the proceedings.

The Democrats continued to skirt substantive questions of law in favor of innuendo on the second day. Senator Patrick Leahy focused on an incident from the Bush administration, in which a Republican staffer got unauthorized access to emails of the Senate Judiciary Committee. No evidence exists that Kavanaugh knew about this breach of norms, though partisans tagged the event as a “digital Watergate.”

Senator Dick Durbin complained that Kavanaugh had misled the committee when he told them that he knew nothing about a program of extraordinary interrogation, because as staff secretary he did know about debates concerning a signing statement on the practice. But these are distinct issues: one concerns an operative program, while the other involves the president’s constitutional prerogatives. Senator Sheldon Whitehouse complained about the Federalist Society’s involvement in Kavanaugh’s nomination and about advertisements run on his behalf—matters outside Kavanaugh’s control or knowledge. These desultory lines of questioning permitted senators to sound righteous while avoiding a debate about judicial philosophy.

And when it came to judicial philosophy, the Democrats were consistently on the defensive. Republican senators repeatedly invited Kavanaugh to nail his colors to textualism in statutory interpretation and public-meaning originalism in constitutional interpretation. He happily did so. The Democrats notably did not challenge him on these responses. Thus, the most important message from the hearings on constitutional law—as opposed to political theater—is that formal approaches to law, textualism, and originalism have become mainstream legal philosophies outside of the legal academy.

A few senators contested some Kavanaugh decisions, but they generally were not able to make their attacks stick, though they did their best to attribute opinions to Kavanaugh that he did not hold. For instance, Senator Amy Klobuchar, one of the most substantive questioners, insinuated that an opinion of Kavanaugh’s might invalidate the Social Security Administration, when in fact the opinion suggested, at most, that the agency’s chief could be fired by the president at will, rather than for cause—a matter of concern only to beltway bureaucrats. Senator Richard Blumenthal claimed that Kavanaugh’s use of the phrase “existing precedent” about Casey v. Planned Parenthood was an attempt to signal that he would overrule Roe v. Wade. But as legal commentator Jonathan Adler points out, the phrase is the opposite of a specific signal, having been used 1,400 times by other judges.

Running for the Democratic presidential nomination in 2020 evidently requires outrageous conduct to make one stand out from the field. Senator Cory Booker grilled Kavanaugh about a few words in a 15-year-old e-mail, without giving him the e-mail to review. Senator Kamala Harris interrogated Kavanaugh about whether he had ever discussed Robert Mueller or the Mueller investigation with any employee of a 350-person law firm, and pounced when he said that he wouldn’t know if someone he spoke with worked there. Our political environment turns such low behavior into badges of high partisan honor.

The only reasonably effective Democratic member of the committee was Senator Christopher Coons, who interrogated Kavanaugh on executive power. It wasn’t his questions themselves that likely resonated with the public, but rather their context, with a sitting president whose conduct has exacerbated concerns about this very issue. Thus, the Kavanaugh hearings also underscored the great paradox of the Trump presidency: while most of the administration’s nominations and many of its policies have been excellent, Trump’s behavior contributes to a climate that endangers their success.

Photo by Drew Angerer/Getty Images

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