It was Alexander Hamilton’s hope and belief that the judiciary would be untainted by partisan politics, that its “firmness and independence” would be protected from “the pestilent breath of faction.” And for much of the nation’s subsequent history, the confirmation of U.S. Supreme Court justices has been mostly bipartisan. When the Republican nominee Anthony Kennedy won his seat in 1988, not a single Democratic senator voted in dissent. When the Republican nominee Clement Haynsworth Jr. lost his bid in 1969, the thumbs-down tally included 13 Senate Republicans. Even the Republican nominee Robert Bork was taken down in 1987 with the help of six Republicans.
But those bygone days seem quaint now that the pestilent breath of faction wafts like an industrial-strength pollutant, now that tribalism rules the chamber and the embattled Brett Kavanaugh is destined Saturday to ascend by what appears to be the narrowest “yes” margin since Stanley Matthews was confirmed by one vote back in 1881. On the Senate floor this morning, Majority Leader Mitch McConnell lamented that “the crossroads of anger and fear and partisanship” has “tarnished the dignity of this institution,” although he didn’t believe that the ruling GOP bore any blame. He instead placed the onus on the opposition party, and on the hundreds of pained young women who practiced “mob intimidation” in the marble halls.
The likely 51–49 for confirmation (with only one dissenting Republican, Lisa Murkowski, voting no, and only one straying Democrat, Joe Manchin, voting yes) was virtually ensured when the Republican Susan Collins of Maine, who is typically depicted as a “moderate,” announced to nobody’s great surprise—because “moderate” is merely her label—that she would toe the party line for Kavanaugh. In the mid-afternoon, she delivered her “yes” speech from a lectern in front of two “yes” women, the Republicans Shelley Moore Capito of West Virginia and Cindy Hyde-Smith of Mississippi, thus seeking to ensure, via TV optics for the viewers at home, that Kavanaugh’s promotion was not a male-Republican power play.
Indeed, her role was to provide cover for the rest of her caucus. No, she didn’t think Kavanaugh would become the linchpin of a 5–4 majority to overturn Roe v. Wade. He respected judicial precedent too much to do such a thing, she said, and, in fact, “I asked the judge point blank.” And no, she didn’t think that Christine Blasey Ford’s sexual-assault allegation outweighed Kavanaugh’s credentials; in her words, “We must always remember that when passions are most inflamed, fairness is most in jeopardy.” And no, she didn’t believe that a Justice Kavanaugh would rule favorably for President Donald Trump in scandal-related cases that may arise just because he’d been nominated by Trump; she said she’s taking Kavanaugh at his word, based on his “unequivocal” statement that “no president is above the law.”
She was virtually the only Republican to raise that issue, even while trying to defuse it. Until the sexual-assault allegations swamped the news cycle, Kavanaugh’s support for robust presidential power—and, most notably, his wariness of special counsels—was one of the most crucial areas of examination, given the possibility that Robert Mueller could seek to subpoena Trump or take other actions in court. Yet, as a parade of Republican senators stood today to tout Kavanaugh, the issue never came up. They preferred to focus their rhetorical energies elsewhere.
John Cornyn of Texas complained about the Democrats: “Power is so important to some people that they will do anything to get it”—which struck some Democrats as odd, since it was Cornyn and his colleagues who in 2016 refused to grant a hearing to the Barack Obama nominee Merrick Garland, holding him hostage for 293 days, the longest limbo in high-court-nomination history. Cornyn also hailed a Kavanaugh endorsement from the Yale law professor Akhil Amar, omitting the fact that Amar suggested on Septemeber 24 that, in light of the sexual-assault allegations, perhaps Trump should nominate “a back-up candidate.” Cornyn was soon followed by Thom Tillis of North Carolina, who touted Kavanaugh’s endorsement by the American Bar Association—which, earlier in the morning, had belatedly announced that it was “reevaluating” its endorsement based on “new information of a material nature regarding temperament.” And Roy Blunt addressed the Garland matter, insisting that Senate Republicans had tied him up because 2016 was an election year, and that no Court nominee had been confirmed in an election year, with divided government, since 1888. Blunt was factually off by 100 years; the Ronald Reagan nominee Anthony Kennedy sailed through a Democratic Senate in the election year of 1988.
So Kavanaugh’s vitally important supportive views on robust presidential power were largely ignored in their torrent of words about the “totally uncorroborated” sexual-assault allegations. Nor did most of the speechifying Democrats, with the exception of Illinois’s Dick Durbin, devote any time to the issue. This was arguably surprising because during the summer there was much buzz in opposition circles that a scandal-marred president, by nominating Kavanaugh, was essentially seeking to purchase survivor insurance.
As a federal appellate judge, Kavanaugh, in a 2009 Minnesota Law Review article, wrote: “I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible … Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel … Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
Collins, while delivering her pivotal “yes” vote, downplayed that passage: “The fact that the judge offered a legislative proposal suggests that he believes the president does not have this protection currently.” She didn’t address the rest of the passage—Kavanaugh’s broader skepticism about criminal investigations involving a president—and she didn’t address his past remark that the unanimous Supreme Court order compelling Richard Nixon to hand over his tapes “was wrongly decided, heresy though it is to say so.” (Kavanaugh has since walked back the remark.) Nor did Collins—or any of her party colleagues—raise an issue that may prove thorny with Kavanaugh on the bench: Given his written belief that busy presidents should not be subject to criminal probes, should he recuse himself if or when such cases come before him?
And the Democrat Tom Carper of Delaware—after citing Kavanaugh’s tempestuous outburst last week about “the left” and “the Clintons”—wondered whether Democratic groups with business before the Court should also seek Kavanaugh’s recusal. Carper asked, “How can any left-leaning enterprise believe it’ll get a fair hearing?”
All of which suggests that the Senate’s tribalist confirmation will not close the book on this saga. Quite the opposite. It may taint the high court for years, raising fresh questions about impartiality. As evidenced again today, the reputed “world’s most deliberative body” most resembles “a cave of winds.” That phrase was coined more than a century ago, in a time of relative comity. Today they are ill winds, and they’re howling.
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