The confirmation hearing for Judge Brett Kavanaugh made clear that getting him confirmed to the Supreme Court now, before the midterm elections, has become the single most important thing conservatives can do for the long-term protection of their interests.
Through that prism, Republicans’ actions since the day Justice Anthony Kennedy announced his retirement make complete sense.
President Donald Trump’s selection process, with his preselected list to draw from, went almost unfathomably quickly — short-circuiting efforts to sink Kavanaugh’s potential nomination from others on the right who backed other potential nominees. Even in that short time, Senate Majority Leader Mitch McConnell was pushing the White House and Trump for nominees with fewer documents for senators to go through than Kavanaugh because of the time that it could take to get through all of his records.
When Kavanaugh was nominated, Senate Judiciary Committee chair Chuck Grassley unilaterally decided that the majority of Kavanaugh’s records from his time working in the George W. Bush White House were “irrelevant” and he didn’t even ask for the committee to get copies of them.
Then, this past week, when faced with questions, Kavanaugh said as little as possible beyond a rote recitation of Supreme Court case law when it came to his legal views and gave stilted answers when asked about responses he gave at previous confirmation hearings.
The aim this whole time has been simple: The White House and Republican leaders have not been working to convince Democratic senators to vote for Kavanaugh so much as they have been seeking to avoid giving a Republican senator a reason to oppose him.
For Democrats, the path has been more complicated. They had to question Kavanaugh’s legal positions on important, but regular, matters that come before the court, but they also had to address the time in which the nomination was before them — the era of Trump — and what Brett Kavanaugh joining the Supreme Court would mean for this time.
They questioned Kavanaugh on a number of his legal opinions. They raised hot-button topics like abortion, gun rights, and religious liberty, as well as more obscure but nonetheless important issues relating to independent federal agencies and the future of federal regulations.
For other nominees, and at other times, that might have been the focus of the hearings — and many more of his 300-plus opinions would have become a part of the discussion this past week.
But it’s 2018. It is an uncertain time — with the vast majority of Democrats and a good number of people who, just two years ago, would have called themselves solid Republicans concerned about foundational issues: the ongoing investigation into whether members of Trump’s presidential campaign colluded with Russians in order to advance their effort to win the presidency, the president’s response to that investigation and anyone behind it, the seeming unwillingness of Republican leaders in Congress to confront Trump on most of his excesses and lies.
Kavanaugh also is a nominee who brings those concerns into sharp contrast. He’s a lawyer who worked for independent counsel Ken Starr’s investigation into former president Bill Clinton and then for former president George W. Bush, has written a law review article encouraging Congress to place limits on investigations of the president, and has ruled on issues relating to the power of and circumstances in which a president can choose not to enforce a law.
Because of all of that and because of the rapid-fire process Republicans have used to move Kavanaugh toward confirmation, Democrats had to spend a significant amount of time at this past week’s hearing beyond the usual high-profile legal issues on two additional, and often interrelated, points: Kavanaugh’s views on executive power and the significant number of key documents from Kavanaugh’s White House work that were, or remain, hidden from the public or even the Senate itself.
Questions about the president’s power not to enforce laws; about the authority of officials to investigate, subpoena, or even indict the president; and about whether Kavanaugh would be independent from Donald J. Trump took on a key role in the hearing because Trump is president, because Kavanaugh is the nominee, and because so much of what Kavanaugh did when he actually advised a president is secret.
It wasn’t all high-minded interest in the rule of law and constitutional norms — although that clearly was at issue. Some of it was politics. Democrats are looking to retake the Senate, and the Kavanaugh hearings were a key moment for Sen. Dianne Feinstein, the ranking Democrat on the committee, and others to draw out the contrasts between the parties. Sens. Cory Booker and Kamala Harris — with their eyes on 2020 — had breakout moments in their uphill battle against Kavanaugh that were more posturing than substance, aimed at solidifying their reputations as fighters for Democratic interests.
In short, Democrats were trying to do a lot — maybe too much — but it was all things that they decided they needed to do. They had to fight Kavanaugh’s opinions, oppose the process, focus attention on the future of the country under Trump and for whatever comes after, and push their political agendas.
Now, the hearing is done.
The focus from the left is on incomplete-at-best or misleading statements that Kavanaugh gave at hearings for when he was being considered for his DC Circuit judgeship — questions about his role in certain judicial nominations, whether he knew about the fact that Judiciary Committee Democrats’ files were being stolen during the time when he was working with the people behind the theft, and when he knew about warrantless surveillance plans by the Bush administration.
Those questions are real, and even those most strongly defending Kavanaugh appear to acknowledge that there are a few moments of his earlier testimony that could be seen as being less than forthcoming.
On Monday, Democrats held a conference call for reporters with former Judiciary Committee staffers — providing a further push on the stolen-files story and further urging from Democrats about the need to see more of Kavanaugh’s hidden White House files.
Nonetheless, Republicans will do everything in their power to keep those questions, like any other questions about this process, from derailing or even slowing down his nomination. The odds are still likely that, absent some bombshell development in the coming days, Judge Brett Kavanaugh will become Justice Brett Kavanaugh by October.
The Senate Judiciary Committee confirmation hearing for Kavanaugh, meanwhile, with all that animated it (and with the dozens of arrests each day of protesters who interrupted the hearing) could stand as the perfect encapsulation of the reality of living in this moment.