The Brawl about Kavanaugh

The confirmation hearings for Supreme Court nominee Brett Kavanaugh got off a to an unruly start on Tuesday. Judiciary committee chairman Sen. Chuck of Louisiana was just 13 words into his opening statement when he was interrupted on a point of order by California Sen. Kamala Harris, who request the hearing be postponed was met by loud cheers from an unruly group of Code Pink protestors, with Grassley ignoring them as he tapped his gavel and continued saying something or another.
Given what’s at stake for both sides of our increasingly angry political discourse, and who’s at work in the judiciary committee, we don’t expect things will get any friendlier. It’s most likely the whole hubbub will wind up with Kavanaugh getting confirmed by the committee’s Republican majority and then by the Republican majority in the full Senate, but the Democrats aren’t going to make it easy.
The Democrats can’t deny that Kavanaugh has all the Ivy League credentials and prestigious clerkships and the long experience of legal work in the executive branch and on the federal bench, and have to admit he seems a nice enough guy, but they don’t like the way he’s almost certain to vote several issues dear to their hearts. At this point they’re not holding out any hope that such hated-by-the-left decisions as Citizens United and Heller will be overturned anytime soon, but they can still wish for a Justice who would allow a few of the campaign finance regulations that Citizens United did away with and perhaps chip away at the individual right to gun ownership established by Heller. More importantly they have good reason to believe that Kavanaugh might be the fifth vote needed to overturn such beloved-by-the-left decisions as Roe v. Wade, which legalized most abortions, and Obergfell, which established a right  same-sex marriages, as well as all sorts of cases involving labor unions and environmental laws and other matters that all too often wound up being settled in the Supreme Court.
Although they’re out-voted until at least December, the Democrats do have a few things going for them. Opinion polls show that many of the ways Kavanaugh is almost certain to vote are widely unpopular with the general public, and only a slim plurality of 41 percent wants to see him confirmed. The Roe v Wade decision is lately enjoying a 63 percent approval rating, and although the Republican party has long vowed to overturn it some of the members are probably skittish about actually doing so. Kavanaugh was also nominated by President Donald Trump, whose latest poll numbers are back down in the high 30s, which provides the Democrats with a possibly persuasive talking point.
Between the “Russia thing” and the hush money payments to a porn star and a Playboy playmate and a suspicious family charitable foundation and the many unprecedented interactions between his still wholly-owned businesses the government Trump runs, Trump has more than the usual president’s share of legal woes. There’s a good chance that some or even all of it will wind up before the Supreme Court, and while Kavanaugh was working as a lawyer for President George W. Bush he had a very expansive view of presidential power, which shouldn’t give only Democrats pause. Trump has lately “tweeted” his view that the Justice Department shouldn’t indict popular Republicans, and Kavanaugh did once write that a sitting president cannot legally be investigated by anyone in the government, so we’ll expect some pointed questions in the coming days and hope for some pretty persuasive answers.
The Republicans also have some things going in their favor besides their slim Senate majority. Kavanaugh does indeed have the impeccable credentials, he comes across as a nicer guy than any of those unruly Code Pink types that the capitol cops kept hauling out of the room, and in most cases there’s sound legal reasoning behind even the decisions that his critics hate most. Once upon a time in America such credentials would win a quick and bipartisan decision, but that was long before Trump came along, and he hasn’t done much to restore civility.
Sound legal reasoning is too complicated for most busy Americans, and it’s easier to take sides on an issue based on how you feel about abortion or same sex marriage or owning a gun than to consider the underlying constitutional issues. For the politicians who are on the committee and will be starring on television for the rest of the week, it’s far easier to pander to those prejudged opinions. Among the players in this week long reality are at least two Democrats and two Republicans who are potential contenders for their party’s presidential nominations, and at least three are clearly eager to get high ratings.
The aforementioned Sen. Harris of California and New Jersey Sen. Corey Booker are clearly near the front of the line for the next Democratic nomination, and both did their best to take advantage of the airtime. Harris’ early point of order to call for a postponement was based on the legitimate gripe that Kavanaugh’s White House handlers had provided 42,000 pages of long-requested documents just hours before the hearings began, and we’re sure those Code Pink punks weren’t the only Democrats who appreciated her futile effort. Her opening statement was a familiar but fairly well-stated litany of all the instinctive reasons liberals will hate the way Kavanaugh is almost certain vote on so many issues dear to liberal hearts, and she well made the good points about what might happen if Trump winds up as a litigant before the Supreme Court. Booker’s turn at the cameras and microphones was even more conspicuously a campaign stump speech, invoking the holy liberal trinity of race, class and gender, and the former mayor of Newark even put in a pitch for the beleaguered farmers out here on the prairie states.
Both were a bit too over-the-top with the righteous liberal outrage shtick to our old-fashioned ears, but we can see them playing well with our more righteously outraged liberal friends.
One of the Republicans who valiantly rode to Kavanaugh’s defense was Texas Sen. Ted Cruz, and we think that the former national collegiate debate champion handled himself rather well. Cruz came in second in the latest Republican primary race to Trump, and having ended a bitter feud with his former rival he might be next in line in ’24, or even ’20 is those don’t turn out so well for Trump, but first he has to survive a surprisingly close reelection run against a young and telegenic and well-funded Democrat named Rep. Beto O’Rourke, so of course he relished the air time. Despite his aw-shucks Texas persona Cruz is a Harvard Law graduate, and couldn’t help complimenting Kavanaugh’s impeccable Ivy League credentials “even though you did go to Yale,” but then proceeded to make a more persuasive case for Trump’s nominee than Trump ever could, and even fit a clear explanation of originalist legal theory into his time.
Cruz is clearly eager to get Trump’s nominee confirmed, and Trump has lately “tweeted” that he’s seeking the biggest stadium in Texas to campaign for his loyal Senate soldier, but all the Democratic money is putting up billboards all over the state remind voters of earlier Trump “tweets” about “Lyin’ Ted” and his ugly wife and how Cruz’ father might have been in on the Kennedy assassination and how the Senator was “all talk and no action.” Next we expect all of the Cruz quotes about Trump being a narcissist and a pathological liar and intellectually and temperamentally and morally unfit for office, and although we expect Cruz to eventually win reelection in reliably Republican Texas we’re not surprised that the polls have it close.
If Trump doesn’t even make it to the ’20 race, which does not seem at all outside the realm of possibility, the young and telegenic Nebraska Sen. Ben Sasse will be well positioned to win the Republican nomination, and we thought he had the best turn at the camera. He rightly decried that Supreme Court confirmation hearings have been partisan brawls since at least President Ronald Reagan’s failed nomination of Robert Bork way back when we were young, and yearned for the “elegant and fair” process that confirmed justices who cases based on facts and law. Sasse made the case that Kavanaugh’s resume and work record suggest he will rule in the same time-honored way, and defended nice enough family guy’s character against the liberal slurs that are sure to come, and pleaded with his colleagues for a civil deliberation.
If Trump doesn’t make it to the ’20 election it will be because of the “Russia thing” or various shady business dealings or the Constitutions emolument clause or the 25th Amendment, or any number of things that might derive from that narcissism and pathological lying and general unfitness for office that Cruz used to talk about, and not because of his tax and deregulation policies of and the judicial policies that all the liberals hate. Sasse is the rare Republican who will openly criticize Trump for the crude disrespect for well-established traditions and the brazen corruption and crazy “tweets,” and as a farm state Senator he’s none too pleased with Trump’s trade wars, but on every traditional Republican thing Trump wants to do he’s been a reliable vote. As we say, this will leave him well positioned in a post-Trump race in ’20, if that should come to pass, which is not outside the realm of possibility.
Kavanaugh finally got an opening statement of his own, and we thought he did well enough. He made the familiar case for his originalist theory of legal interpretation, talked about his dad some and his mom a lot more, and talked about coaching his daughter’s basketball team, and how grateful he is to all the coaches had along the way. He noted the disproportionate-to-the-population number of law clerks who were female or of some ethnic minority, which took some of the wind out of the sails that both Harris and Booker had raised, and didn’t seem at all the type to poison the air or force back alley abortions or any of the other things he stands accused of.
All in all it was reassuringly bland, which we much prefer to the more common righteously outraged politics on both the left and the right these days, so unless the Democrats come up with some convincing evidence that Kavanaugh was nominated to rig the system in some upcoming Trump-related case, which is not entirely outside the realm of possibility, we’ll take that Sasse fellow’s word for it and give him the benefit of the doubt.

— Bud Norman

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