Brett Kavanaugh’s Confirmation Hearing Didn’t Change Anything

After a week of political theater in the Senate Judiciary Committee, President Trump’s nominee is back where he started: on his way to the Supreme Court.

A protester interrupts the Kavanaugh hearings on Friday.
A protester interrupts the Kavanaugh hearings on Friday. (Chris Wattie / Reuters)

Democrats seemed to have one goal throughout the Brett Kavanaugh hearings this week: to catch him in a lie. A steady drumbeat of leaked emails purported to show that he was less than honest in the way he framed his views to senators. Kavanaugh told Dianne Feinstein that Roe v. Wade and subsequent abortion-related cases are “important precedent.” The next day, The New York Times published a “secret email” from 2003 in which Kavanaugh questioned whether “all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent.”

Patrick Leahy grilled Kavanaugh about emails “stolen” from a server shared by Republicans and Democrats in the early 2000s, which Kavanaugh apparently received but denied any involvement in or knowledge of in the past. And Kamala Harris pressed Kavanaugh on whether he had ever discussed Robert Mueller’s investigation with anyone at the firm founded by Donald Trump’s lawyer.

Their attacks did not seem to stick. On abortion, Kavanaugh said he was merely summarizing other legal scholars’ views. On the leaked emails, he appeared confused. And on Mueller, Kavanaugh said he never gave “any winks, hints, forecasts, previews, nothing about my view as a judge, or how I would rule as a judge” on a potential case about the Russia inquiry.

In the end, none of it may matter. Even before the hearings began, it seemed likely that Republicans had the votes for confirmation, and Senate Majority Leader Mitch McConnell said Friday that he had no doubt “whatsoever” that Kavanaugh would get through. The Senate Judiciary Committee has produced hours and hours of testimony from a judge who will likely serve a lifetime appointment on the Supreme Court, attempting to compel a confession about which precedents he’ll keep or overturn right before he is set free to vote however he chooses on any future case. The whole contentious process demonstrated how partisan the Supreme Court nomination process has become, and how little power Congress—and American citizens—has to influence the judiciary.

Throughout the hearings, senators repeatedly came back to the question of precedents: which decisions were correctly or incorrectly decided, and how Kavanaugh would determine what should be overturned. Among the Democrats on the committee, the focus was on abortion, LGBTQ rights, and race. Feinstein was one of several senators who asked Kavanaugh repeatedly about his views on Roe and the 1992 follow-up case, Planned Parenthood v. Casey. Harris brought up the Supreme Court’s 1889 decision on Chinese exclusion from the United States, asking Kavanaugh whether Congress or the president can ban entry into the country on the basis of race. “That was just in litigation,” Kavanaugh replied, refusing to give an answer “as a matter of independence.” Cory Booker asked Kavanaugh about his opinion on the right to same-sex marriage, established in the 2015 case Obergefell v. Hodges. He refused to share his personal views, answering instead, “The law of the land protects that right, as dictated by the Supreme Court.”

Kavanaugh followed what has now become a time-honored tradition of Court nominees wriggling their way out of giving a definitive answer about their views. His former boss at Harvard Law School, now-Supreme Court Justice Elena Kagan, referred to the practice in her confirmation hearings as not giving a “thumbs-up or thumbs-down” to any particular case. Kavanaugh consistently called back to the issue of judicial independence, crutching on the often-used sports cliché that he is just an “umpire,” calling cases in a purportedly neutral way.

Kavanaugh did have an interesting exchange with Republican Senator Ben Sasse about precedent, however. As Damon Root pointed out in the magazine Reason, Sasse got Kavanaugh to explain why he thought Brown v. Board of Education, which overturned the ruling that African Americans could be treated as “separate but equal” in Plessy v. Ferguson, was correctly decided. Kavanaugh praised the way the lawyer Thurgood Marshall, a future justice, litigated segregation cases in the lead-up to Brown, creating an incremental argument that eventually prevailed at the Supreme Court.

The exchange provided a useful look into Kavanaugh’s legal thinking about an issue that will inevitably come up during his time on the Court, if he is confirmed: All justices eventually face the question of whether to overturn past Supreme Court precedents, and no matter their ideological background, the temptation to do so is strong. Although they did not often succeed at getting definitive answers from Kavanaugh, senators have at least created a public record of his claims to judicial independence, which, if he is confirmed, may prove interesting as his record as a justice expands.

But academic interest may be the beginning and the end of the hearings’ usefulness, at least in terms of holding Kavanaugh accountable for his views. As Republican Senator Lindsey Graham pointed out during the third day of the hearings, the Court’s power to determine major parts of American life is expansive, and almost completely unchecked:

Whatever five people believe at any given time … they can rewrite our history and come up with a new history … I hope that one day the Court will sit down and think long and hard about the path they’ve charted … [It] shuts out all of us who have gone to the ballot box and gone through the test of being elected.

Kavanaugh’s confirmation will likely be brought to a swift vote in the full Senate chamber, where he’ll need only 51 votes to win his lifetime seat on the Supreme Court. After marathon days of testimony, punctuated by dramatic arguments over Senate documents and the passionate cries of protesters who claim that Kavanaugh’s confirmation is “a matter of life and death,” it’s not clear that anything has changed. Another Supreme Court justice will likely be confirmed, and the theater of democracy will continue.