Once again, those hoping the hearings to vet a Supreme Court nominee would be a grand demonstration of democratic deliberation find themselves doomed to disappointment. The majority has used their power to limit access to part of the nominee’s paper trail. It may or may not contain information harmful to his case, but we’ll never know.
The majority is ramming through Kavanaugh as fast as possible so that, even if Democrats take the Senate in November, a five-seat Republican majority on the court will be a done deal. Even the eleventh hour appearance of a witness claiming Kavanaugh, as a drunken high school preppie, sexually assaulted her is unlikely to slow down the juggernaut.
The juxtaposition of Kavanaugh’s official bio — family man, girl’s basketball coach, Catholic altar boy — with the picture of 1000-keg Kavanaugh, the high school senior and attempted molester is creepy, but not impossible to imagine in an era that includes pedophile priests, coaches, and Judge Roy Moore.
The defense of his nominee’s purity by our ‘grab ’em by the pussy’ president is also bizarre. But even if these charges were to derail this far right jurist, there would be another waiting in the wings. The composition of the court will end the same. Partisan advantage is now all that matters.
Once deference was paid to the nominees of the president in power on the understanding that the next president would receive similar treatment, regardless of party. Once the filibuster rule meant a nominee had to be able to attract more that a simple majority, helping to reduce the likelihood of seating an unqualified or excessively partisan character.
No more. A bipartisan modus vivendi is as outmoded as whalebone corsets. Indeed, President Trump’s first nominee, Justice Gorsuch, now occupies a seat stolen from President Obama, and Trump’s second nominee, like all Republican jurists for many years, is a product of the Federalist Society’s originalist farm team, a school of ideology that has steadily yanked jurisprudence to the right.
But all of that is subtext. The hearings themselves are a charade in which senators posture and the nominee does his best to reveal nothing. It is a version of rope-a-dope. Let the questioners wear themselves out until the bell rings, ending the round.
It’s a brilliant strategy, given the vanity of most senators and their enthusiasm for the sound of their own voices. At least three Democratic inquisitors — Booker, Harris, and Klobuchar — are contemplating a run for president in 2020, so they are using this forum as free airtime with which they can show they are warriors for the Constitution.
Other senators simply want to posture, trying to show they haven’t forgotten what they learned in their one class in Constitutional Law, forty or fifty years ago. The nominee can invariably run rings around them citing obscure cases and precedents since they have been steeped for decades in the Greater and Lesser Arcana of the law. But nominees usually feign respect for the dotards who have the power to elevate them.
Senators of the president’s party spend all their time fawning over the nominee and swaddling him in downy rhetoric as if he were a newborn, except when they are hysterically protesting questioning by the other party, as if the nominee was being brutalized by torturers subjecting him to waterboarding. The senators of the minority party spend most of their time, when not up to bat, shooting death rays with their eyes in the nominee’s direction, as if he were Darth Vader.
The majority party’s Chairman of the Judiciary Committee is Chuck Grassley, an 83-year-old Iowa farmer who does not have a law degree, but does have a gavel, and often behaves with the waspish temperament of a cartoon grandpa telling the kids to keep off the lawn.
By contrast, a few questioners, like Sheldon Whitehouse of Rhode Island, have actually seemed interested in substance and have appeared troubled by the way the court now operates, how nominees are selected and how special interests control its docket, decide which cases are heard and how they are decided. Not that it matters.
Like Gorsuch before him, Kavanaugh has promised to observe precedent, to decide every case on the merits, and to not force every case to fit a procrustean bed of conservative orthodoxy. But he will not keep his word. The cases he says not to worry about because they are “settled law” will be unsettled soon enough. Ideology will trump blind justice, and it will be too late to have second thoughts because High Court appointments are for life.
A story told about the much admired Supreme Court Justice William J. Brennan is all you need to know about what will happen next. Law professor Adam Winkler describes how “Brennan used to ask his new law clerks what the most important rule in constitutional law was. They would ponder the question and respond, ‘freedom of speech,’ ‘separation church and state,’ or ‘separation of powers.’ No, Brennan would respond with a wry smile. And then he would hold out one hand with his fingers outstretched. ‘Five,’ he would say. A justice needs five votes to make a majority on the nine-member court. With five votes, a justice could do anything.”
The same principle applies to seating Supreme Court justices. It doesn’t matter how biased or unqualified or predatory the nominee is, how much partisans protect him, or foes attack him, how many trick questions they can ask him, or how long they can pore over his paper trail. If you haven’t got 51 votes, he won’t win a seat on the Supreme Court. And if you do, he will. Case closed.