On the subject of President Trump’s nomination of Brett Kavanaugh to be an associate justice of the United States Supreme Court, this would be an excellent time to take a deep breath and say we look forward to his answers in upcoming Senate confirmation hearings.
The notion that might happen, however, would require an Alice in Wonderland view of our current political universe.
In fact, the pre-hearing Democrat histrionics over Kavanaugh’s nomination to succeed Anthony Kennedy on the high court would be almost laughable – if they didn’t reflect so accurately where we are as a country. And make no mistake, if the political tables were turned, we would be in the same place – only with Republicans vowing opposition.
Kavanaugh by any objective standard is eminently qualified. He earned both his undergraduate and law degree from Yale and has served with distinction during his 12 years on the 2nd Circuit Court of Appeals in Washington, D.C.
He was appointed to that position by then President George W. Bush – hardly a Trump fan – who praised Kavanaugh’s Supreme Court nomination last week, calling him “a brilliant jurist” and a “man of the highest integrity who will make a superb justice.”
Many Democrats, however, are apoplectic at the prospect of Kavanaugh replacing Anthony Kennedy. In what has become an accurate reflection of how the court is now viewed, Democrats alternately describe Kennedy as a thoughtful swing vote on issues like gay marriage where he voted their way, and a member of the “extreme right wing” when he sided with the 5-4 majority to uphold the Trump travel ban and the recent Janus free-speech case (where the court said public employees couldn’t be required to pay dues to a union they don’t want to join).
In other words, it’s not about civics. It’s about whether you like the decisions.
Some groups on the left say Kavanaugh would undo abortion rights set out in Roe v. Wade and gut health care. But critics aren’t limited to the left. On the right, Kavanaugh’s nomination has drawn opposition from groups like Freedom Watch and the American Family Association that don’t think he’s conservative enough. The AFA, which has led a boycott of Target over its bathroom policy accommodating transgender people, is concerned about how Kavanaugh might rule on issues of religious liberty and, ironically, abortion. Their concern, of course, is the polar opposite of groups on the left.
Democrats, including Senate Minority Leader Chuck Schumer of New York, have vowed opposition – despite not yet hearing any of Kavanaugh’s answers to questions. And, yes, it would be improper of him to signal how he would view a specific issue. The so-called Ginsburg rule set forth by then-Sen. Joe Biden stipulates nominees are under no obligation to answer questions regarding their personal views or about any issue that might come before the court.
He undoubtably will answer questions about Roe v. Wade by saying it is established precedent and he has faithfully followed it in his years on the 2nd Circuit.
While there won’t be agreement anytime soon on Kavanaugh, we should be able to agree the Supreme Court has become a political issue far more important than Alexander Hamilton envisioned in Federalist Paper 78, in which he argued for an independent judiciary because it would be the “weakest branch” of government, without the power of the sword or the purse.
Democrats have a legitimate complaint in Republicans stalling on the Merrick Garland nomination by then-President Obama, holding off hearings until after the election Trump unexpectedly won. But in the court of equity, they don’t have clean hands either as they also have manipulated court nominations – including a filibuster to block a vote on Bush nominee Miguel Estrada in 2001, which some argued was to prevent a Republican president from appointing a Hispanic to the court.
As Estrada wrote in a Washington Post op-ed piece, “As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle. There are no rules. There is no point in pretending otherwise as much as many of us wish it were not so.”
He went on to say Republicans and Democrats “put the blame on one another for abandonment of rules and norms in judicial confirmations” but “both are being insincere – whitewashing their conduct over a long period of time while complaining bitterly about the very same conduct on the other side.”
The fact Estrada is correct about this doesn’t change where we are in history.
The president has exercised his authority to nominate, and now it’s up to the Senate to act – and it now requires only a simple majority to get to a floor vote courtesy of a Republican payback for an earlier Democrat maneuver to end most judicial filibusters.
It’s likely pointless to suggest, but the Senate should thoughtfully conduct these hearings and focus on qualifications and general judicial philosophy rather than trying to handicap decisions. But that’s the Alice in Wonderland view. What we are likely to get is a bloody political battle that might well have sent Hamilton back to the drafting table.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.