Law Yields to Politics in Kavanaugh’s Confirmation Hearings

(Bloomberg) -- Judge Brett Kavanaugh’s Supreme Court confirmation hearings left Republicans satisfied, Democrats frustrated and some observers wondering how much value the whole process had.

In two marathon days before the Senate Judiciary Committee this week, Kavanaugh laid out a broad vision of the court’s role, while saying next to nothing about specific issues. Following the path forged by past nominees from both parties, President Donald Trump’s second Supreme Court nominee spent as much time dodging questions as answering them.

The end product was a mixture of constitutional debate and partisan posturing.

"There were parts of the hearing that showed how valuable the process can be," said Jonathan Adler, a constitutional law professor at Case Western Reserve School of Law. "And there were parts that showed how they can easily become nothing more than political theater and an opportunity to score political points."

Fans of confirmation hearings say they present a unique opportunity to educate the public about the court and the Constitution. Nominees have been testifying publicly since Felix Frankfurter did it in 1939 to address allegations of disloyalty stemming from his support for civil liberties.

Hearings are, in the 2006 words of then-Senator Joe Biden, the "one democratic moment" before someone gets a "lifetime of judicial independence."

Running the Gantlet

But they have also become a gantlet for nominees to run. Kavanaugh had to navigate Democratic insinuations that he had improperly discussed Special Counsel Robert Mueller’s Russia investigation with someone at the firm of Trump’s longtime attorney. The Democrats presented no evidence, and he said he’d had no improper conversations about the probe. The judge also parried Democratic questions about his views of controversial comments made by Trump.

And Kavanaugh deflected repeated Democratic efforts to get him to discuss high-profile issues, among them abortion, gay marriage and Mueller’s investigation. Kavanaugh cited the practice of previous nominees, including Democratic appointees Ruth Bader Ginsburg and Elena Kagan.

"You can’t give a thumbs up or thumbs down and maintain the independence of the judiciary," Kavanaugh said. "So I need to follow that nominee precedent here."

Some constitutional scholars say they barely bother watching confirmation hearings.

"The hours I did see seemed to suggest that his hearings were just as worthless as they have been in recent memory," said Brian Fitzpatrick, a Vanderbilt University law professor who once worked on Supreme Court nominations for Republican Senator John Cornyn of Texas. "They never tell us what they think about anything.""
 
"I understand why they don’t," Fitzpatrick added, "but it makes the hearings pretty pointless -- except to provide a platform for grandstanding by the senators."

In Kavanaugh’s case, some of the grandstanding came during repeated clashes over documents from his work in President George W. Bush’s White House. Democrats complain they haven’t been permitted to review hundreds of thousands of pages of relevant material stored in the Bush presidential library.

Almost 200,000 pages of other documents are being treated as confidential, available to senators but not the public. At one point, Democratic Senator Cory Booker of New Jersey said he was prepared to engage in "civil disobedience" and violate what he said were Senate rules by releasing some of those materials.

Kavanaugh tried to stay out of the fray. "That’s a decision for the committee and the executive branch and the presidential library," he said.
 
The reluctance of nominees to discuss specific legal issues stems in part from Robert Bork’s 1987 nomination. Bork used his confirmation hearing to aggressively defend his view that judges should adhere to the intent of the Constitution’s framers. The Senate voted down his nomination, 58-42.

Adler said the Kavanaugh hearing produced some valuable discussions amid the political sniping. He pointed to Delaware Democrat Chris Coons’ conversation with Kavanaugh about presidential power.
 
Coons "asked a lot of meaningful questions that put some issues on the table and let the nominee answer," Adler said. "That’s a reasonable use of the process."

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