There’s one overwhelming takeaway from the mind-numbing spectacle that was Supreme Court justice nominee Brett Kavanaugh’s Senate confirmation hearings: Majority Leader Mitch McConnell (R-Ky.) had a point when it came to Merrick Garland.
It annoys liberals to no end that McConnell never allowed so much as a hearing for Garland when then President Barack Obama nominated him in early 2016 to replace the late Justice Antonin Scalia. The seat was left vacant for a year until President Trump could fill it with Justice Neil Gorsuch. Now Trump, a popular vote loser embroiled in the Russia investigation and other scandals, is getting to replace former Justice Anthony Kennedy with Kavanaugh.
Sen. Lindsey Graham (R-S.C.) poured salt into these old wounds when he told anti-Kavanaugh Democrats that if they wanted to have input into who was on the Supreme Court, they needed to win some elections. But Obama won two!
Then again, when Obama nominated Garland, Republicans controlled the Senate. Even if they had allowed hearings on Garland, they almost certainly would not have voted to confirm him.
The Kavanaugh hearings have proven once again that these hearings are a charade in which no one’s votes are actually in play. So what would have been the point with Garland — more theatrical grandstanding? Procedural niceties? Senate Republicans had the votes to block Garland. They almost certainly would have denied Garland a seat, as they had as much constitutional authority to do as Obama did to send him to the Senate in the first place. Why bother with the charade?
It is quite obvious this time around that the senators demanding documents from Kavanaugh’s past have all made up their minds. Even the ostensible swing voters — a pair of moderate Republicans who have proven impervious to conservative primary challenges, and three or so red state Democrats up for re-election this year who are not overly dependent on outside liberal groups for help — would require nothing short of a Kavanaugh meltdown to alter their positions in large enough numbers to influence the outcome.
Senate Judiciary Committee members are mostly vamping for the cameras. The Democrats, especially those with 2020 presidential ambitions, are being tendentious in their questions. The Republicans are either hitting back or being annoyingly folksy. Both seem aggressively uninterested in Kavanaugh’s answers, especially if they contain any detail or nuance.
Both parties understand that a single Supreme Court justice is more important than 10 senators in deciding what policies we will have on abortion, affirmative action, political speech, guns, and religious liberty. Vacancies that tilt the ideological balance of the court are now accordingly treated with even more seriousness than a Senate race that would shift partisan control in one direction or the other. After all, Senate terms are six years. A Supreme Court appointment is for life.
Kavanaugh himself seemed to know that there was no chance that any of the Democrats interrogating him would vote for him anyway, so he merely needed to behave nicely enough to maintain basic decorum and not irritate moderate Sen. Susan Collins (R-Maine).
Sen. Cory Booker, a New Jersey Democrat with his eyes on the White House, briefly stirred some interest by rushing out some Kavanaugh emails. But even that “I am Spartacus” moment largely fizzled, with the only caveat being that we might learn more about Kavanaugh’s role in Bush-era national surveillance policies, a rare area of bipartisan concern about the judge.
The old norms of granting hearings and up-or-down votes to qualified nominees regardless of party or judicial philosophy were probably better. But they presupposed senators would make individual judgments about these nominations and both parties would play by the same rules. It is difficult to see a realistic way back.
The Senate confirmation process, like the Supreme Court’s status as an unelected social-issues super-legislature, has become an exercise in raw power. It may at this point be better to remember that parties gain and lose power than to pretend otherwise.
Garland may have deserved better. Maybe it would have been nice to at least give him his hearing. But it is increasingly clear that this would have done nothing to change the outcome: Garland was always doomed.
Perhaps we should thank Mitch McConnell for sparing us the stagecraft and just shooting down the nomination from the get-go.
The Week · by W. James Antle III · September 10, 2018