Although the media buzz on Monday had pointed to President Trump’s choice of Judge Brett Kavanaugh as the next nominee to the Supreme Court, the announcement was nevertheless an exciting and historic moment. Similar to a starting gun at a track meet, it was a signal that the battle in the Senate can now begin in earnest.
Appeals Court Judge Brett Kavanaugh, 53, has impeccable credentials. A graduate of Yale College and Yale Law School, he currently teaches at Harvard Law School. Kavanaugh once clerked (along with Supreme Court Justice Neil Gorsuch) for Justice Kennedy, whom he has been nominated to replace. He comes across as being a very genuine and likeable man, a loyal husband and a loving, involved father. He evens finds the time to coach his daughters’ basketball teams and to run marathons. Conservatives have given Trump high marks on his pick.
As Sean Hannity said, this decision required President Trump to “thread a political needle.” Although it’s difficult to imagine anyone objecting to this accomplished and good man, Democrats – and even several Republicans – will certainly try.
Kavanaugh’s nomination could be problematic for pro-choice Republican Senators Susan Collins (ME) and Lisa Murkowski (AK). We actually don’t know if he would vote to overturn Roe v. Wade as Collins and Murkowski (and most Democrats) fear, and Kavanaugh is likely too skilled a candidate to be pinned down. For different reasons, Senators Rand Paul (KY) and Ted Cruz (TX) may need a bit of convincing to earn their votes.
This nomination is seen as catastrophic by all of the Democratic Senators, as any of the four names on Donald Trump’s shortlist would have been. They understand that Kavanaugh’s replacement of Justice Kennedy will have consequences and they fear the worst.
Just as President Obama selected liberal Supreme Court nominees, President Trump is selecting conservative nominees. Republicans weren’t thrilled to confirm Sonia Sotomayor or Elena Kagan to the top court, but we lost an election. The Senate confirmed Sotomayor’s nomination in 2009 by a 68-31 vote and Kagan was confirmed the following year by a 63-37 vote.
Democrats have demanded that confirmation hearings be delayed until after the midterms. Yet, when presented with a similar situation in 2010, and worried that they might lose seats in the midterms, they chose to vote before the elections. Kagan’s confirmation occurred in August 2010.
Kavanaugh will be grilled on many issues including Roe v. Wade, second amendment rights and corporate regulations. Democrats will scour and criticize his decisions, especially those regarding the EPA and net-neutrality.
Democrats will point to his role in Independent Counsel Kenneth Starr’s Whitewater investigation. Kavanaugh wrote “much of the Starr Report that prompted the president’s (Bill Clinton) impeachment—not for the Arkansas real-estate deal that initially prompted the investigation, but for lying under oath when questioned about an affair with a White House intern.”
Kavanaugh worked “for candidate George W. Bush in the recount imbroglio following the November 2000 election and then spent six years in the White House as a lawyer and eventually staff secretary to the president.” He will certainly be attacked for that.
And thanks to former Senate Majority Leader Harry Reid (D-NV) for introducing the “nuclear option” which changed the requirement of 60 votes to confirm a nominee to a simple majority of only 51 votes, Kavanaugh’s path to confirmation will be easier than it would otherwise have been. Although Reid’s measure did not extend to Supreme Court nominees, current Senate Majority Leader Mitch McConnell (R-KY) changed the law to include them when it suited Republicans. One of my colleagues at RedState, Joe Cunningham, covered this here.
Confirmation hearings for Supreme Court Justices have become increasingly rancorous over the years. The two most memorable confirmation battles were fought over Judges Robert Bork and Clarence Thomas.
Some of us are old enough to remember the outrageous behavior from the left during the 1987 Senate confirmation hearing of Judge Robert Bork, a Reagan nominee. Leading the charge against this highly qualified candidate was that pillar of morality, the “Lion of the Senate,” Ted Kennedy. Sadly, Bork was never confirmed. The left’s campaign to denigrate this good man was so severe, that a new term, “bork,” was coined to describe it. The dictionary definition of bork is:
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to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification…to this day, a nominee sidelined by activists is said to have been “borked.”
The 1991 Senate confirmation process of Justice Clarence Thomas, a George H. W. Bush nominee, pitted the Democrats against the Republicans in another bruising battle. At the time of his nomination, he had only eight months of experience as a federal judge. Most significantly, he was a conservative and he was continually questioned about his position on Roe v. Wade. He claimed he hadn’t yet formed an opinion.
The larger issue was a leaked report alleging that Thomas had sexually harassed law professor Anita Hill, who had worked for Thomas first at the Department of Education (DOE), then at the U.S. Equal Employment Opportunity Commission (EEOC). While at the DOE (in 1981), Hill claimed:
He (Thomas) spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes… On several occasions, Thomas told me graphically of his own sexual prowess.
The obvious question is why did she follow him to the EEOC the following year? She answered that “the work, itself, was interesting, and at that time, it appeared that the sexual overtures… had ended.”
According to Hill, the sexual remarks and overtures continued:
Thomas was drinking a Coke in his office, he got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, ‘Who has put pubic hair on my Coke?
Thomas denied the allegations and claimed that Hill had been passed over for promotion and was simply bitter. He called the hearings a “high-tech lynching” stating:
This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.
I recall watching that vote. Thomas was confirmed by a 52-48 margin. It was riveting.
All of this is to warn that we can expect a contentious confirmation battle. Nancy Pelosi has vowed to “avenge Obama” by fighting this nomination. Sen. Kirsten Gillibrand (D-NY) said Kavanaugh must “not become the next Justice and that it will take all of us to fight against him.” Center for American Progress leader Neera Tanden said, “We must ensure that we defeat Brett Kavanaugh. All of our rights are at stake.”
The fight ahead is certain to become bitter, but in the darkest moments, we must all breathe a sigh of relief that President Hillary Clinton is not choosing the nominees for the Supreme Court – or any court.
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