It was over so quickly that if you weren’t glued to C-SPAN you surely missed it, but a spontaneous moment of grace took place during the relentlessly partisan confirmation hearings for Supreme Court nominee Brett Kavanaugh. It came when Sen. Lindsey Graham, a South Carolina Republican, asked Kavanaugh how he’d like to be remembered at the end of his life.
The question seemed to take the nominee by surprise. “A good dad,” Kavanaugh replied haltingly, “a good judge.” As he hesitated, California Sen. Dianne Feinstein, prompted the witness: “A good husband.”
As laughter rippled through the room, Graham quipped, “Thanks, Dianne, you helped him a lot.” Temporarily reprieved, Kavanaugh smiled and told Feinstein, “I owe you.”
This brief respite was a reminder that those at that hearing — senators on both sides of the aisle, political advocates on opposite ends of this political fight, even the loudmouth protesters and Capitol Police officers who kept arresting them — live in one common country. It also offered Americans a brief glimpse into how the Senate once operated, even while grappling with issues of great national import.
No longer. The Democrats’ stalling tactics, rudeness, grandstanding, demagoguery, and organized disruptions — aided by demonstrators who shrieked intermittently at the nominee — reminded Texas Republican Sen. John Cornyn of “mob rule.” That’s probably too strong a phrase, but the Democrats’ guerrilla tactics raised questions that go to the heart of self-governance: Is this the new norm on Capitol Hill, and in U.S. politics generally? If so, can the two-party system still function? And how did the confirmation process come to this?
The answers to those all questions are varied — and certainly not the fault of only one political party. Here are four factors that have helped create legislative chaos:
The Garland Factor: By any objective standard, Brett M. Kavanaugh is highly qualified to serve on the U.S. Supreme Court. Although he worked in exclusively Republican legal circles – and on the staff of Independent Counsel Kenneth Starr, whose investigation led to President Clinton’s impeachment — Kavanaugh has also served for the past 12 years as a judge in the First U.S. Circuit Court of Appeals. There, he penned more than 307 opinions and 100 dissents. Senate Judiciary Republicans insisted all week that if Democrats want to know what kind of Supreme Court justice Kavanaugh would be, all they have to do is read those cases. He’s also, by all accounts, a nice guy.
But there is a glaring weakness in the Republicans’ argument. If Kavanaugh’s tenure on the D.C. Circuit qualifies him to serve on the court, certainly Judge Merrick Garland is just as qualified, if not more so: Garland is the chief judge on that court. He, too, is regarded as a good dude — Kavanaugh says so himself. Yet, after Garland was nominated by President Obama to fill Antonin Scalia’s seat in 2016, the Republicans wouldn’t even grant him a hearing.
Sen. Ted Cruz pointed out Thursday that Garland joined in 27 out of 28 opinions written by Kavanaugh, while Kavanaugh returned the favor, joining in 28 out of 30 of Garland’s rulings. “I think we are trying hard to find common ground and as I’ve said before, he is a great judge,” Kavanaugh explained. “Those statistics reflect the reality of how judges go about their business.”
Fair enough, but Cruz’s ploy revealed the cynicism of Senate Majority Leader Mitch McConnell’s 2016 gambit. If Garland was so reasonable, why did Republicans treat him so shabbily? And why is it even reasonable to expect Democrats to just forget about it?
Court Balance: The man eventually tapped to fill Scalia’s seat was Neil Gorsuch. Democrats weren’t thrilled, but they didn’t lose their minds over it, as they have this time. The reason is that both parties tacitly accepted the logic that a “conservative seat” was being filled. This time, President Trump is replacing Justice Anthony Kennedy, who was a pivotal swing vote on the high court for three decades. Democrats are acting as though replacing him with a conservative is the end of democracy as we know it.
There’s a certain amount of revisionism here: Justice Kennedy, appointed by President Reagan, was usually on the conservative side of the court’s numerous 5-4 decisions. And as recently as earlier this summer, liberals were complaining about him bitterly. But he was not a movement conservative and the fear is that on such hot-button issues as affirmative action, gun control, abortion – especially abortion — Kavanaugh will be the deciding vote who swings public policy in this country in a decidedly conservative direction.
In this regard, it’s the Democrats’ argument that has a flaw – two, actually. The first is that had she won the 2016 election, President Hillary Clinton would have done the same thing in reverse: the Scalia and Kennedy seats would have gone to two progressives expected to show fealty to all the Democratic Party’s sacred cows.
The second problem is that such litmus tests are not what the high court is supposed to be. Those justices are supposed to be legal scholars who adjudge the weighty constitutional questions before them without fear or favor. The current system is designed to reduce them to the status of dependable (if coy, at least during their confirmation hearings) political hacks who can be counted on to finesse their rulings in ways that won’t offend the special interest groups that bankrolled the president who appointed them.
Presidential Politics: Two other Judiciary Committee Democrats, both attorneys themselves, have what any good lawyer would recognize as an obvious conflict of interest: They want to be president themselves. We’re talking about California’s Kamala Harris and Cory Booker of New Jersey, participants in what might be called the “Kavanaugh Primary.”
Judiciary Chairman Chuck Grassley was 13 words into his introductory remarks when he was interrupted by Harris. She wasn’t being rude. Well, let’s rephrase that: It wasn’t mere rudeness. Harris was less concerned with offending Grassley than in getting the jump on Booker.
Booker rebounded the next day with an inspired performance in which he claimed repeatedly that he was releasing Kavanaugh White House emails that had been marked confidential even though it meant he could be expelled from the Senate. This penalty was unlikely, given that Grassley has previously acceded to requests to make the emails public. It might best be described as “fake grandstanding.” In the Kavanaugh Primary, apparently there is no such thing as bad publicity.
The Trump Factor: That said, it is a fact of life that Kavanaugh is in Democrats’ cross-hairs because of the man who appointed him. “You are the nominee of President Donald John Trump,” Sen. Dick Durbin told Kavanaugh. “This is a president who has shown us consistently that he’s contemptuous of the rule of law.
Durbin then went on to say that Trump had canned James Comey when he decided that the FBI director “wouldn’t bend to his will,” and that Trump “harasses and threatens his own attorney general.”
“It’s that president who decided you are his man,” Durbin added
To some Democrats, it seemed Durbin was reading stage directions, but what he was raising is on every Senate Democrats’ mind: Will it be harder to impeach Trump with Kavanaugh on the court? Perhaps Brett Kavanaugh is that partisan. Then again, maybe he’s faithful to the rule of law. Bill Clinton might be the Democrat to ask.
Carl M. Cannon is executive editor and Washington Bureau chief of RealClearPolitics.