Kavanaugh is confirmed, but rancor lives on (E-29)

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We recently characterized the national political conversation as “heavy on personal attacks and uncivil (in some cases violent) behavior and light on meaningful substance.” Key issues for mid-term elections, 8/6/18.

. . . the hottest arguments seem to be about whether [President Trump] is (1) a scoundrel who is endangering our country, system of government, rule of law, economy, etc., or (2) a national savior who is keeping his promises and working tirelessly to “make America great again.” And inevitably this spills over into heated discussions about the intelligence and character of his supporters and detractors.

Too bad, because a raft of important policy issues are being ignored while less important matters are covered nonstop. SAFE Newsletter,
fall 2018.

Over the past several weeks, the focus shifted from the president personally (although he remained a target) to a Supreme Court confirmation battle – which ultimately ended in what Republicans saw as a good result, but didn’t leave anyone feeling very good about the process. Let’s consider some of the malfunctions and the path forward.

A. Politicized process - On July 9th, the president’s nomination of Brett Kavanaugh to fill a vacancy on the US Supreme Court triggered an immediate declaration of opposition by Senate Democrats. Not “I’ve got some questions for him” or “let’s see what the investigation reveals,” but “he’s manifestly unsuitable” or words to that effect. US Supreme Court: striking a balance, section 9, 7/23/18.

From the standpoint of his professional credentials, experience, and reputation, Judge Kavanaugh was eminently qualified. Consider the high praise from people that have interacted with him over the years, such as Harvard Law School Dean and Professor John Manning. The legal community is giving rave reviews to Judge Brett Kavanaugh’s nomination to the Supreme Court, whitehouse.gov,
7/12/18.

An inspiring teacher and mentor, Judge Kavanaugh has somehow always found extra time for his students, whether to dig deeper into important legal questions or to offer valuable career advice. Let me take this occasion to thank Judge Kavanaugh for the generosity, dedication, and collegiality he has shown our community.

The American Bar Association subsequently joined the chorus after what was no doubt a thorough review, ABA committee gives Kavanaugh a well-qualified rating, Debra Cassens Weiss, abajournal.com,
9/4/18. Caveat: the ABA has recently expressed some reservations about the nominee, as will be discussed later.

The ABA Standing Committee on the Federal Judiciary on Friday gave its highest rating of well-qualified to Kavanaugh, a 53-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit. *** The ABA standing committee evaluates nominees based on professional competence, integrity and judicial temperament.

So what explained the immediate declarations of opposition by Sen. Chuck Schumer (“I’m going to fight this nomination with everything I’ve got”), Sen. Dick Durbin (Senate Democrats should vote “no,” even if they represent “red” states), Sen. Tom Carper (characterized the nominee’s record as “extreme” and “deeply disturbing.”), and others? US Supreme Court,
op. cit., section 9.

The answer: confirmation of a Supreme Court justice is primarily based on political considerations versus ability. And understandably so, as the Supreme Court has handed down decisions with sweeping social and political implications – e.g., recognizing abortion rights for women (Roe v. Wade) or same sex marriage rights (Obergefell v. Hodges) – while showing less zeal for protecting property rights from government infringement.

Liberals tend to favor judges that will support and extend this progressive judicial trend, while conservatives believe judges should interpret and apply the laws as they were originally understood. And whatever his other political leanings may be, Judge Kavanaugh has a track record as an “originalist” when it comes to applying the Constitution and statutes. US Supreme Court,
op. cit., section 6.

To be fair, Supreme Court confirmations have been politicized on both sides of the aisle. Witness the millions of dollars spent on TV ads, etc. for and against Judge Kavanaugh, primarily targeting states where senators viewed as potentially persuadable are located. Pro-Trump group launches ads urging Red State Democrats to confirm Brett Kavanaugh, Alana Abramson, time.com,
7/11/18. Anti-Kavanaugh campaign makes extensive use of “dark money” donations, Paul Crookstan, freebeacon.com, 7/27/18. NRA says it’ll spend at least $1 million on pro-Kavanaugh ads, Polly Mosendz, bloomberg.com, 8/7/18.

B. Exhaustive review – Although most Senate Democrats had almost instantly declared they would oppose the Kavanaugh nomination, that didn’t stop them from demanding reams of information. The prime goal seemed to be delaying a decision on the nominee until after the elections. And there was always the chance that if enough documents were obtained and enough questions were asked, information might surface that could sink the nomination.

Re what kind of positions the nominee might take as a Supreme Court justice, the 300+ opinions he had written in 12 years as a judge on the DC Court of Appeals were readily available. Not good enough! Essentially every document that Kavanaugh had generated or reviewed while serving in the Bush 43 White House – in the White House counsel’s office (2001-03) and as staff secretary (2003-06) – was demanded. Democrats inject chaos into Brett Kavanaugh hearing with delay demands, Steven Nelson, Washington Examiner,
9/4/18.

Democrats cited the release of approximately 42,000 pages of documents Monday evening from Kavanaugh's work in the George W. Bush White House, and a further 100,000 pages that have not been produced because the White House asserted executive privilege. Before Monday, 415,000 pages from Kavanaugh's White House service were produced to the Senate Judiciary Committee.

Some of the committee member demands to adjourn the hearing were unseemly, and the atmosphere wasn’t improved by the antics of protestors who had somehow been allowed into the hearing room. Opening minutes of Brett Kavanaugh hearing interrupted by protestors, Melissa Quinn, Washington Examiner,
9/4/18.

Capitol Police officers removed at least six women from the hearing room as they shouted, calling for senators to vote no on his nomination and cancel the hearing.

Senate Judiciary Committee Chair Chuck Grassley insisted on proceeding with the hearing, which ran for several days with numerous questions by the committee members being asked and either answered or parried by the nominee. Senate Democrats didn’t seem to be making much headway and a committee vote on the nomination was planned for September 20. Brett Kavanaugh Supreme Court nomination, c-span.org,
9/13/18.

Then there was a surprise announcement by the ranking minority member, which changed the situation dramatically. Brett Kavanaugh “secret letter” from [Sen.] Dianne Feinstein includes allegations of sexual misconduct, Brenda Kirby, lifezette.com,
9/13/18.

I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court. “That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.

Sen. Feinstein denied responsibility, but it wasn’t long until Professor Christine Blasey Ford’s identity was revealed. The power of a named accuser: Kavanaugh’s future now hangs in the balance, Stephen Collison, cnn.com,
9/17/18.

And at least two other accusers materialized, although their claims wound up receiving considerably less attention than the story told by Professor Ford.

Many Americans saw the sexual assault allegations through a political lens, and opinions on this subject didn’t predictably break down along gender lines. On the street: Is Kavanaugh controversy strictly political? Genevieve Wood, dailysignal.com, video (3:32),
9/20/18.

After much discussion about the timing and ground rules, Professor Ford testified to the Judiciary Committee on the morning of September 27 and Judge Kavanaugh responded that afternoon. Ford’s testimony was generally perceived to be heart-felt but didn’t fill in the time, place, etc. details. Kavanaugh denied he had sexually assaulted Professor Ford, or anyone else, and lambasted the proceedings as a politically motivated attack. Brett Kavanaugh and Christine Blasey Ford duel with tears and fury, Sheryl Gay Stolberg & Nicholas Fandos, New York Times,
9/27/18.

Judge Brett M. Kavanaugh and his accuser faced off [they were not in the hearing room at the same time] Thursday in an extraordinary, emotional day of testimony that ricocheted from a woman’s tremulous account of sexual assault to a man’s angry, outraged denial, all of which played out for hours before a riveted nation and a riven Senate.

Another week of delay ensued to permit a supplementary FBI inquiry that consisted of interviewing several individuals named by Professor Ford and also the second accuser. This step was proposed by Sens. Jeff Flake (R-AZ) and Chris Coons (D-DE) on the understanding that a prolonged delay or full-blown investigation of what might have happened 36 years ago wasn’t intended.

From all accounts, the FBI didn’t turn up any new information of substance, although Senate Democrats continued to say further investigation was needed. A number of protestors were arrested. Grassley: “No hint of misconduct,” Stephen Dinan & Alex Swoyer, Washington Times,
10/4/18.

Anti-Kavanaugh activists were not swayed by the lack of corroboration in the report [which they had heard about but not read]. Hundreds mobbed the office buildings in the Capitol complex Thursday afternoon loudly demanding senators vote against the judge. US Capitol Police officers were escorting some protesters out in handcuffs.

C. Unrealistic expectations – There’s nothing wrong with setting high standards for important jobs, especially when life-time appointments are at stake, but one should not promise or expect perfection. And that goes for the president – who has been known to engage in hyperbole on occasion. Trump calls Kavanagh “perfect,” makes Christine Blasey Ford a punchline, Julie Arciga, dailybeast.com, 10/2/18.

Trump also called his nominee a “perfect human being” and said [Professor Ford’s] allegations were “destroying his reputation.”

In the process of countering Professor Ford’s allegations, the nominee had owned up to downing a good many beers in his teenage years. Fancy that, evidently he wasn’t so “perfect” after all.

Some observers suggested Kavanaugh should withdraw from consideration so the president could nominate someone who was clearly above reproach. Michael Hayden: Even if innocent, Kavanaugh should withdraw “for the greater good for the nation,” Trent Baker, breitbart.com,
10/3/18.

Aside from the waste of time and energy involved, however, such a course of action would have provided no assurance of the next nominee passing muster. There aren’t many “perfect human beings” in this world, and nominee two might have turned out to have a few blemishes if his/her past was put under a microscope as Kavanaugh’s had been.

Also, such a course of action would turn the “presumption of innocence” on its head by conceding that the nominee needed to disprove a claim dating back 36 years. How reasonable was it to expect him to do that, particularly as Professor Ford hadn’t cited a specific date or location for the alleged sexual assault?

Some disagreed on grounds that Kavanaugh was interviewing for a lifetime appointment versus acting as a defendant. Sen. Chris Coons: Burden of proof lies with Kavanaugh, Valerie Richardson, Washington Times,
9/25/18.

Mr. Coons said that Christine Blasey Ford and Deborah Ramirez “have nothing to gain” and have put themselves “at legal risk” by accusing Mr. Kavanaugh of sexual misconduct in his teen years. “It is Judge Kavanaugh who is seeking a lifetime appointment to the Supreme Court and who I think now bears the burden of disproving these allegations,” said Mr. Coons in a Monday interview on MSNBC, “rather than Dr. Ford and Deborah Ramirez who should be dismissed with slanderous accusations.”

Even if the sexual assault charges against Kavanaugh hadn’t been established, went another line of argument, his passionate rebuttal was disqualifying because it revealed that his low key, nonpartisan demeanor was a pose. ABA reopening Kavanaugh evaluation due to “temperament,” Bob Fredericks, New York Post,
10/5/18.

An alternately tearful and combative Kavanaugh verbally sparred with senators during questioning and charged that he was the victim of a partisan plot cooked up by Democrats to torpedo his nomination to avenge the election of President Trump, who nominated him.

Judge Kavanaugh wasn’t simply trying to win confirmation to the Supreme Court, however, he was responding to allegations that impugned his personal and family honor. If he knew the allegations weren’t true, wouldn’t it be natural for him to get mad? [Harvard Law School Professor Alan] Dershowitz rips Booker’s Kavanaugh comments, John Bowden, thehill.com,
10/4/18.

"It sounds very familiar," Dershowitz said. "When I was in college, that's what they said about people who were accused [e.g., by Sen. Joseph McCarthy] of being Communists. It doesn't matter whether you are innocent or guilty, if someone has accused you of being a Communist and you angrily responded and said you're not, then...you don't have the temperament to have the job."

It’s also worth recalling that before Kavanaugh’s rebuttal testimony, critics had claimed that he must have sexually assaulted Professor Ford because he hadn’t displayed anger in his initial response. Flashback: When Brett Kavanaugh’s lack of anger proved his guilt, Tim Carney, Washington Examiner,
10/5/18.

The excuse on which some senators and the Washington Post editorial board are settling to oppose Brett Kavanaugh is that he was too angry in his Senate testimony last week. This is an excuse, because like so many lines of attack by Kavanaugh's opponents in politics and the press, we know for a fact that they would attack him either way.

A week after his September 27 testimony, Kavanaugh saw fit to pen a column for the Wall Street Journal explaining his uncharacteristic anger. GOP optimistic as Kavanaugh op-ed caps chaotic confirmation, Alex Swoyer & Stephen Dinan, Washington Times,
10/4/18.

“I said a few things I should not have said,” he admitted. “I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.” He vowed, though, to be an impartial justice, keeping “an open mind in every case.”

D. Outcome – After much further discussion, including a notable speech to the Senate by Sen. Susan Collins as to why she had decided to support the nomination, the Senate voted (on Saturday, Oct. 6) to confirm Brett Kavanaugh. It was a party line vote with two exceptions: Sen. Joe Manchin (D-WV) voted “aye.” Sen. Lisa Murkowski R-AK) of Alaska refrained from voting to offset the absence of Sen. Steve Daines (R-MT), but otherwise would have voted “no.”

The president was headed to a political rally in Kansas by this time, and Brett Kavanaugh was sworn in as a Supreme Court justice by Chief Justice John Roberts and recently retired Justice Anthony Kennedy. This ceremony took place in the Supreme Court building, which is across the street from the Capitol Hill complex.

Never say die! Several hundred protestors mobbed the front steps of the Supreme Court building until a sufficient number of police officers arrived to move them away.

Justice Kavanaugh will join the Supreme Court tomorrow, bringing the court back to full strength, and life will go on. But is the battle truly over?

Some Kavanaugh critics are vowing further investigations with the aim of justifying his impeachment. It’s also been suggested that two more members should be added to the Supreme Court in order to break what appears at this point to be a conservative majority.

Such ideas will probably wither on the vine if the united-for-once Republicans fare well in November, as some observers are starting to expect. Even CNN admits it: Democrats got outplayed on Kavanaugh,” Karista Baldwin, westernjournal.com,
10/7/18.

There are no final victories in politics (or life itself), however, and conservatives will rue the day if they rest on their laurels now. There is a lot of work to be done! Conservatives must realize Kavanaugh victory is not the end . . . it is the beginning, Mark Davis, townhall.com,
10/8/18.

Let us bring Kavanaugh confirmation-style courage and energy to our fights for stronger borders, health care reform and fiscal sanity. Maybe a uniquely brave wing of the GOP can even prod the President on spending cuts.

**********FEEDBACK**********

#America needs a constitutional amendment to compel the Justices to use the Founder's original intent when interpreting laws, and an impeachment process to more easily remove them from the Court when they do not.

This will end all of the shenanigans, engaged in by both parties, as it applies to appointment to high courts. The jurists cannot be permitted to enact laws from the bench. Their proper role is to interpret the laws passed by Congress and signed by the President.

If the People feel the Constitution, as written, no longer applies, the proper course of action is to amend it. This should remain a difficult process to avoid the heat of the moment decisions and chaos. – SAFE director

Comment: While agreeing that justices should focus on the provisions of the Constitution versus free lancing, this proposed solution doesn’t sound feasible to us.

#I'm opposed to the Kavanaugh appointment as are over 2,400 university law professors. His demeanor at the hearing was unfathomable, and the FBI follow-inquiry was a joke. All that needed to be done was to put forth a better candidate. – Retired financial manager

Comment: As we see it, the opposition tactics were abusive, the outcome was appropriate, and Brett Kavanaugh will be an outstanding SCt justice. Re the reported opposition of law school professors, please see the heartfelt endorsement of Harvard Law School Dean John Manning and others whose expressions of support are cited in the entry. See also this note re Dean Manning.

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