UPDATE: 9/28: The Senate Judiciary Committee voted along party lines (11-10) to advance Judge Kavanaugh’s nomination to the full Senate. According to a gentleman’s agreement negotiated between Sen. Jeff Flake and Democratic members of the committee, the floor vote will be delayed by one week pending a renewed FBI background investigation on multiple claims of sexual assault.
After three days and approximately 30 hours of testimony, D.C. Circuit Court Judge and Supreme Court nominee Brett Kavanaugh finally ended a confirmation hearing that was at its best informative and at its worst petty and childish. Kavanaugh’s time in the hot seat on Capitol Hill is a sad example of just how pathetic and circus-like the Senate confirmation process has become.
Republicans, Democrats, and Kavanaugh were all guilty of contributing to the clown car that the American people witnessed on television this week. Democrats on the Judiciary Committee, still enraged that Majority Leader Mitch McConnell refused to allow President Barack Obama to fill an open Supreme Court seat in 2016, all but threatened to shut down the hearings by interrupting within seconds of Chairman Chuck Grassley gaveling them in. As a sign of protest, Minority Leader Chuck Schumer objected to a unanimous consent request that would have allowed the Judiciary Committee to continue working past the two-hour deadline written into Senate rules. Ordinarily, such a request would be granted no questions asked. For Schumer, however, it was one more point of leverage for Senate Democrats to exploit.
Back in the hearing room, Democratic senators like Cory Booker used their time to speechify rather than probe Kavanaugh about his judicial philosophy or opinions on legal precedent. Booker, who is almost certainly running for president in 2020, spent his seven-minute blocks of question time berating the Trump administration for being racially insensitive, authoritarian, and a danger to the Republic. When Booker did ask Kavanaugh a question, he chose to solicit the nominee’s opinion about Trump’s character—a clever way of boxing Kavanaugh in. All of this came after Booker compared himself to Spartacus and released committee-confidential documents to the public. Transparency might have been one of the reasons behind Booker’s decision, but eliciting the progressive movement’s attention and booking cable news spots surely played greater roles.
Republicans weren’t much better. The GOP desperately wants Kavanaugh to take his seat on the Supreme Court for obvious reasons: he would shift the Court solidly to the right, perhaps for a generation. Thus, over 100,000 documents from Kavanaugh’s time as a lawyer and staff secretary in the George W. Bush administration were kept under wraps for reasons of executive privilege without any objections from Chairman Grassley. And when Kavanaugh’s lawyer dumped 40,000 records into the public’s lap a few hours before the hearing began, Grassley chose to plow ahead anyway rather than delaying the proceedings so senators on the panel could thoroughly peruse them. Republicans weren’t in a congenial mood: the faster they could send Kavanaugh across the street to the high court, the better.
Judge Kavanaugh, too, deserves his share of the blame. His answers were meandering at times, designed to avoid answering direct questions about everything from Roe v. Wade to whether the president of the United States could be criminally indicted while in office. When Senator Kamala Harris—another potential 2020 Democratic presidential candidate—asked whether Kavanaugh had ever had a conversation about Special Counsel Robert Mueller’s investigation with the law firm of Marc Kasowitz, one of Trump’s personal attorneys, Kavanaugh dissembled and pretended he didn’t understand the question.
You’d be forgiven for thinking this entire exercise was a colossal waste of time.
It’s an unfortunate way to conduct a confirmation process, but it’s the cold reality in today’s political environment. Ever since Robert Bork’s 1987 grilling, confirmation hearings have been less about educating the public as to the qualifications and history of the nominees, and more about jousting between the two political parties. Ambitious politicians obsessed with climbing the ladder (apparently being a U.S. senator isn’t a plum enough job) turn what should be public information sessions into an extension of the campaign trail. Why ask about judicial jurisprudence when you can give a speech about how terrible the other party is?
Many will dismiss the Kavanaugh drama as immaterial to their daily lives. And to be fair, that could very well be the case.
But this also misses an important point: by virtue of its behavior, the Senate is making a mockery of the advise-and-consent clause, one of the most critical powers the U.S. Constitution bestows upon the legislative branch. Just like the declare-war clause that has gone out of fashion since World War II, lawmakers are ducking one of their core functions in the Constitution in order to pursue personal and parochial objectives. If James Madison, Thomas Jefferson, and John Jay came back from the dead, one wouldn’t be surprised to see them crawl back into their graves.
Daniel R. DePetris is a foreign policy analyst, a columnist at Reuters, and a frequent contributor to The American Conservative.