Don’t Punish Kavanaugh for Government Service

(Bloomberg Opinion) -- Democrats have sensible tactical reasons for demanding every last piece of paper about Supreme Court nominee Brett Kavanaugh. Nevertheless, their demands have gone too far. Any senators who want moderation in general and abortion rights in particular have enough information to oppose Kavanaugh. That’s good enough.

Democrats are demanding full disclosure of everything Kavanaugh wrote in each of his previous positions, most notably as George W. Bush’s White House staff secretary. That’s an extremely important job, and Democrats are correct that assessing his performance in it is fair game in deciding whether to confirm him or not. It’s also true that Democrats, in demanding millions of pages of records, are only doing what Republicans did when Elena Kagan was nominated. 

Even without the staff secretary papers, which Republicans did not formally request from the National Archives, there are hundreds of thousands of pages being cleared and delivered to the Senate Judiciary Committee. In fact, there’s so much that they won’t be fully ready until late October. Senate Judiciary Committee Chair Chuck Grassley is going ahead with September hearings anyway. 

What’s really at stake here in the immediate battle over documents is the confirmation timetable. Most observers think that Kavanaugh is likely to be approved. But it’s certainly possible, in a Senate with 50 voting Republicans (since John McCain is still absent) and 49 Democrats, that one or two Republicans could wind up defecting and join united Democrats to defeat him. If that happens in September or even October, however, it won’t really matter as long as those hypothetical defecting Republicans are willing to vote for another young, very conservative nominee. Donald Trump would have plenty of time to select a replacement and have the current Senate vote to confirm in a lame-duck session.

If, however, Democrats could successfully push the vote back until November and defeat Kavanaugh then – and capture a Senate majority in the elections – then the timeline gets difficult for Republicans, who would have to move from announcing a new nominee to a final confirmation vote in fewer than two months. In other words, the nomination for a Kavanaugh replacement might be kicked over to a Senate with a Democratic majority. And even if they didn’t blockade the seat the way Republicans did for the vacant Supreme Court seat in 2016, they would almost certainly force Trump to select a more moderate pick, or an older one, or both. 

So even if waiting for all the paper on Kavanaugh wouldn’t yield any new insights among Democrats already opposed to him, it could damage the grip Republicans have on the appointment. 

Indeed, that’s why Senate Majority Leader Mitch McConnell reportedly wanted a different nominee. He realized that Kavanaugh’s positions in government, including stints in the White House counsel’s office and with Independent Counsel Kenneth Starr during the Bill Clinton investigation, would make confirmation a headache just in terms of the sheer volume of the record.

But I’d rather look at it a different way. After Robert Bork was defeated for a long history of taking very unpopular positions on legal issues and public policy, both parties overreacted by avoiding elevating anyone with any history of interesting writings. Not only has the high court been deprived of some presumably interesting thinkers. Judges so bold as to say something specific about judging find it exceedingly difficult to get nominated to the Supreme Court. 

The demands of disclosure threaten to rob the court of people with any record of public service. If the goal was finding some random email to blow out of proportion, that would be bad enough. But in this case, the vetting demands of Democrats are simply meant to sink Kavanaugh’s chances, something that a normal president would have realized before tossing him off the short list. Again, Republicans have plenty of time to select a nominee with less of a track record if the Kavanaugh process drags on for too long.

To be clear: I’m not saying here that Senators should ignore what Kavanaugh did as staff secretary or with the Starr investigation. There is probably good reason for Democrats to oppose him for those actions. But there’s enough on the public record already even without any disclosure of internal documents for Democrats to do so. By also demanding every document (and again, Democrats are following recent precedent here, so I’m not blaming them in particular), the Senate is increasingly constructing a process which pushes presidents to choose only the stealthiest of stealth nominations – inexperienced, uninteresting lawyers with as little a public record as possible.

Once upon a time, presidents put politicians on the high bench – people such as Earl Warren and Sandra Day O’Conner. They made good judges, and helped ground the momentous decisions in real-world politics. If we can’t have those, at least it’s good to have people with real government experience beyond the judicial branch. The current Senate vetting practices make that, too, less likely. The Senate may think it’s raising the standards for the Court by demanding so much disclosure, but all it’s really doing is making it harder and harder to appoint the kind of justices the Supreme Court needs now. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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