Republicans were roundly condemned for denying Merrick Garland a confirmation hearing. If his hearing would have degenerated into anything like Kavanaugh’s, maybe they did him a favor. The Kavanaugh hearing unfolded with all the seriousness and probity of a Jerry Springer show. CNN derided it as “one of the most vindictive and ill-tempered congressional hearings in memory.” The New York Times described it as the “new reality” of Supreme Court confirmation hearings, consisting of “pandemonium, protesters and razor-sharp partisan lines.” Republican Senator Lindsay Graham observed that comparing the hearing to a circus was unfair to circuses.
Republicans got it off on the wrong foot by pushing too quickly in their desire to get Kavanaugh seated by the start of the Supreme Court’s October term. This resulted in an obviously rushed document-production process featuring a massive data dump on the eve of the hearing and the initial withholding from public access of documents that were later cleared for release. However, disputes over documents were largely a sideshow. Most Democrats announced their undying opposition to Kavanaugh as soon as he was nominated or even before. It’s clear that all Democratic members of the Judiciary Committee were poised to vote no even had they been furnished every unredacted page of every document that passed Kavanaugh’s way during his White House years.
With Chairman Grassley only 13 words into his opening statement, Democrats began taking turns attempting to sabotage the hearing with carefully choreographed interruptions expressing faux outrage over document issues. They were abetted by equally organized outbursts from plants in the audience. One wonders how the protesters seemingly monopolized public seating. Did they crowd out ordinary members of the public who simply wanted to observe the hearing? Do they face any consequences? No matter; Democratic senators generally praised the protesters for their outrageous behavior. In a particularly disingenuous exchange, Senator Durbin told Kavanaugh:
“There have been times where [the protesting] was uncomfortable. I’m sure it was for your children. I hope you can explain this to them at some point but it does represent what we are about in this democracy . . . What we’ve heard is the noise of democracy.”
What was Kavanuagh to “explain” to his young daughters, that the vituperation heaped on their dad by an uncivil mob was a civics lesson-worthy example of democracy in action?
Outbursts from the audience persisted throughout the hearing as did grandstanding and demagoguery by senators opposed to Kavanaugh. Two Judiciary Committee Democrats, using the hearing as a stage to audition for their upcoming presidential election bids, led the charge. Kamala Harris was the first to interrupt Grassley and later drew attention by her evidently false and McCarthyesque insinuations that Kavanaugh had contacts with Trump lawyers relating to the Mueller investigation. However, the grandstanding Oscar went to Cory (“Spartacus”) Booker, who flaunted his courage in violating Senate rules and risking expulsion to release confidential emails about Kavanaugh. It turned out that the emails already had been cleared for release, as he apparently knew. In any event, they had little significance. (See here and here.)
There’s a tendency to pick “winners” and “losers” from such events. In that spirit, I’d offer the following:
Kavanaugh was the primary winner. He successfully executed the standard nominee game plan of displaying legal acumen while saying little of substance, avoiding major gaffs, and suffering abuse from senators as gladly as possible. From a nominee’s perspective, the confirmation process has become akin to a fraternity initiation rite in which the goal is to emerge unscathed from a few days of unpleasant but inevitable senatorial hazing.
Presidential wannabes Harris and Booker also could be considered winners insofar as their histrionics played well with the Democratic base and their media allies. (See here and here.) However, this doesn’t bode well for the public. It signals that Democrats plan to defeat Trump in 2020 by out-Trumping him with falsehoods, violation of norms, and boorish behavior that equals or exceeds his own.
It’s hard to see any positives for other Committee Democrats. They seem to have won no converts. If anything, their over-the-top theatrics probably solidified support for Kavanaugh among Republicans and pushed the few Democratics still on the fence closer to voting for him. One of these fence-sitters, Joe Manchin, said of their tactics: “Not the way I was raised.”
In fairness, Democrats had little ability to impede Kavanaugh. They effectively made themselves irrelevant bystanders this time around with their pointless filibuster of the Gorsuch nomination. Their only realistic goal was to show their base what a disruptive “resistance” they could be. But their efforts fell short even here as they were still rebuked by leftist interest groups. These groups reserved special scorn for Ranking Committee Member Dianne Feinstein who was the one Democrat to refrain from the initial interruptions and, even worse, had the temerity to apologize to Kavanaugh for the “circumstances” of the hearing.
In the final analysis, the primary losers from this sorry spectacle are our governmental institutions, and ultimately therefore, all of us. For those (hopefully few) who take it seriously, the hyperbolic rhetoric about Kavanaugh undermines confidence in his integrity as a judge. More generally, the increasing politicization of judicial confirmations demeans and threatens the integrity of the federal judiciary as a whole. Partisans on both sides constantly reinforce by their words and actions a growing perception that judges are merely “politicians in robes” who decide cases based on their policy preferences rather than objective legal criteria.
The Senate also emerges as a major loser. Its abuse of confirmation hearings over the years has stripped them of any value. Confirmation hearings for Supreme Court nominees are of surprisingly recent vintage. The first occurred in 1916, and it was not until 1959 that a nominee was subjected to serious questioning. Hearings over the next few decades were sometimes illuminating in exposing the weak qualifications or ethical shortcomings of several nominees. However, their value greatly diminished in the aftermath of the 1987 Robert Bork fiasco. Bork, an eminently qualified if arrogant nominee, engaged in substantive and robust debate with Senators at his ill-fated confirmation hearing. For this, he was mistreated so severely that his name became a verb. (Bork: To “obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.”)
Later nominees learned from Bork’s experience that the best approach is to say as little as possible about their substantive legal views. This led current Justice Elena Kagan to describe confirmation hearings (some years before her own) as a “vapid, hollow charade.” With Kavanaugh, the hearings have degenerated from charade to downright ugly farce. On top of this, the willingness (even enthusiasm) of Senator Booker and others to flout Senate rules and release confidential documents (or at least pretend to do so) will likely result in even greater reticence to share documents with the Senate for future confirmations.
Confirmation hearings have become so worthless, if not worse than worthless, that some have called for their abolition. A less extreme approach might be to remove cameras from the hearing room. This would at least discourage the shameless posturing and demonstrations. One recurring question asked at these hearings is whether the Supreme Court is right to prohibit television coverage of its proceedings. Kavanaugh’s hearing certainly strengthens the case for continuing the ban.