All the Rules Are Changing

The Senate is abdicating its responsibilities, and the norms meant to undergird a Supreme Court appointment are falling apart.


The Senate Judiciary Committee’s hearing into the sexual-assault allegations against the Supreme Court nominee Brett Kavanaugh was largely useless as a substitute for a meaningful fact-finding inquiry. It was depressingly informative in another respect, marking further deterioration in the norms undergirding the Senate’s discharge of its constitutional advice and consent duties.

Honored imperfectly and sometimes in the breach, those norms have been generally accepted. The Senate would give a significant measure of deference to the president’s ideological preferences, but it would attend to the objective requirements of assuring that the nominee possessed the requisite experience, qualifications, and temperament. The late Republican Senator Charles “Mac” Mathias, who served on the Judiciary Committee for 18 years, wrote in 1987 that “a president is entitled to reflect his judicial and political philosophy.” The Senate’s job is to “satisfy itself that the nominee before it is fully qualified, by virtue of education, experience, integrity, and character, to be granted a lifetime commission to sit in judgment upon the liberties and the legal rights of the American people.”

This arrangement for the consideration of lifetime appointments to the powerful court had already been strained in conditions of extreme polarization. It may now be coming apart.

This is perhaps no surprise. Under conditions of severe political stress, nominations for appointments to the Supreme Court will be a battleground. When the parties compete in an all-out, zero-sum contest for control of the legislative and executive branches, they will not neglect to expand the fight to a court of judges serving for life that often—and all too often—steps in to resolve sharply contested political, social, and cultural issues. When Senator Kamala Harris pressed Kavanaugh on Thursday on why he was the victim of a left-wing conspiracy, but not Neil Gorsuch before him, she attempted to highlight the obvious point that Gorsuch did not face allegations like those facing the current nominee. But it is also true that Gorsuch was nominated to succeed Scalia, and Kavanaugh to replace Anthony Kennedy.

These realities do not excuse the Senate from a rigorous review of allegations that bear on character and temperament. In the confirmation process involving Justice Clarence Thomas, the FBI was promptly tasked with supplementing its background investigation after Anita Hill’s allegations of sexual harassment surfaced. The hearings that were then scheduled to hear public testimony lasted three days, and multiple witnesses other than Hill and Thomas appeared. The last session ended at two in the morning.

Yet the Senate majority controlling the Kavanaugh nomination process was ready to dispense altogether with a supplemental background inquiry in responding to Christine Blasey Ford’s allegations. It responded with a one-day hearing notable for unique features, including a severely truncated witness list, confined to Ford and Kavanaugh, and members limited to five minutes of questioning, which rendered impossible any coherent factual development.

Then the last part of the hearing was devoted entirely to a fairly unabashed political appeal to Republicans to rally around their nominee. This portion, dominated by majority-member oratory, tied up neatly with Kavanaugh’s opening statement. He set the stage for a political argument with his reference to Democratic conspiracy, including a motivation to avenge the Clintons, and Republicans in the second half put a sharp exclamatory point on his position.

The suggestion in nomination battles that one side or the other, or both, are playing politics is not unusual. But the one-day hearing was fundamentally organized around two objectives: obstructing any opportunity for bona fide fact-finding and an explicit appeal for a resolution dictated by partisan affiliation. This is new.

Only when its hand was forced by the need for a close vote to answer concerns expressed by Senators Flake, Collins, Manchin, and Murkowski has the Republican leadership in the Kavanaugh process acquiesced in the 11th hour in a further inquiry limited in time and scope. But it did so only after successfully persuading Republican committee members to vote as a bloc to move the nomination to the floor. It did not commit to additional public hearings. There will be none.

One might believe that this turn of events means that the Republican strategy failed and that, rather than supplying a precedent for the future, its about-face in acceding to a week’s additional inquiry will revitalize the norms. But the return on the Republican gambit should not be too hastily discounted. The new fact-finding venture has been compressed, limited to “less than one week.” There are conflicting reports about the terms of the probe. NBC News reported that the White House dictated to the FBI a preliminary and short witness list, which would suggest that the extent of the investigation will depend on the preferences of the Republican Senate leadership and the minimum requirements of the senators whom the White House must have to win confirmation. President Trump and White House officials have disputed that, insisting that they have not limited the probe, although an unnamed senior official confirmed some of the NBC report to The Washington Post. Moreover, fueling the skepticism about the White House claims, senior administration officials have suggested that it is the Senate that is dictating the terms—a claim inconsistent with the argument that the FBI is running a fully professional inquiry free of external political pressure.

In other words, much like the one-day hearing, this is a highly managed fact-finding, and it comes only because the White House and Republican majority were forced into it. The meaning of this episode for the viability of the norms may also depend on the outcome—on whether this maneuvering to limit an investigation is later seen to have helped achieve confirmation of this now controversial nominee.

Many Republicans answer by insisting that Democrats are acting in bad faith, having injected these charges at the last minute, and suspect that they are now prepared to add more charges as necessary to stall the nomination to an end-of-the-year death. There is no doubt that the process is now suffused with distrust. But had the White House and majority followed the normal process weeks ago, as soon as the Ford allegations became known, the core interviews could have been speedily conducted and would by now be completed and available to the Senate. The Republicans refused to reopen the background investigation then.

Instead, the majority chose to rely on committee staff for any follow-up on Ford’s allegations. This could never satisfy the need for an independent review entrusted to law-enforcement professionals who do not answer to partisan elected officials and who are in the best position to inform the Senate’s judgment on these issues—and to communicate seriousness of purpose to the public, Ford, and Kavanaugh. The majority then structured the one-day hearing to check the box on fact-finding—until, having no choice, they accepted the limited-scope, “less than one week” FBI review.

This is the second consecutive nomination to the Court that has reflected the Senate’s abdication of its advice and consent function in the service of a majority party’s goal of controlling the Court. In the case of Merrick Garland, the party in power refused to engage with the nomination at all. Every aspect of process was cast aside: courtesy visits, hearings, votes. Now, in the Kavanaugh matter, the majority has evaded an inquiry into questions of character and temperament. It used the one-day public hearing to recast the factual questions as tests of political loyalty.

Once the review now under way is completed, the question the undecided senators will face is how to weigh the results in reaching and explaining their votes. It is widely expected that the interviews will be inconclusive, yielding no new facts of particular consequence. But, of course, it may well be inconclusive precisely because it is incomplete. Moreover, it will be incomplete because it has been structured by the White House rather than left entirely to the judgment of professional investigators.

This was the problem with the agreement reached with Senator Flake: It gives the appearance, but it is not the reality, of a bona fide independent review. When senators soon vote, they will be making two decisions: one on whether to base their decision in any way on this investigative record, and the other on whether, as an institutional matter, to validate this fact-finding process.

The first decision is about the confirmation of this nominee. The second is about the Senate’s advice and consent role, and in particular, the seriousness and independence with which it will “satisfy itself that the nominee before it is fully qualified, by virtue of education, experience, integrity, and character, to be granted a lifetime commission to sit in judgment upon the liberties and the legal rights of the American people.”

In the Thursday hearing’s most notable show of fiery rhetoric, Senator Lindsey Graham raged at the committee Democrats, trying to reclaim the long-standing norms for his side and charging Democrats with shamelessly violating them—“the most despicable thing I have ever seen in my time in politics.” It was hard to miss the irony. The special counsel that the majority recruited to show the flag on an ostensibly serious fact-finding had suddenly fallen silent. She was not heard from again. Now it was all speeches, all politics.

This is what has become of the struggle over the Supreme Court, as institutional norms melt away in the intense heat of deeply polarized politics.