The futility of the Kavanaugh hearings

The Senate Judiciary Committee spent Tuesday decapitating its credibility.

The soul-sucking scrum that was day one of Brett Kavanaugh's Supreme Court confirmation hearing started out, ostensibly anyway, with spats over the late production of documents related to Kavanaugh's tenure at the White House more than a dozen years ago. Just hours before the hearing began, Democrats on the Judiciary Committee received 42,000 pages of new documents, adding to more than 400,000 produced over the summer. Before chairman Chuck Grassley could even dive into his welcoming statement to Kavanaugh and his family, almost every Democrat on the panel began offering a series of objections to the hearing, demanding its adjournment in order to have more time to review the new material. In the first 40 minutes of the hearing, Alyssa Hackbarth calculated 44 interruptions, 13 from Connecticut's Richard Blumenthal alone.

In any other context, asking for time to review the documents might have been a reasonable request — if in fact anyone on the Judiciary Committee was still pondering how their vote would go. Blumenthal, who had the most objections and repeatedly demanded an adjournment, announced his opposition to Kavanaugh the same day his appointment was announced. At that time, Blumenthal rested his decision on Kavanaugh's "record and writings, which I have reviewed," claiming that they showed a "very extreme hostility to many of the precious rights and liberties that make our nation great."

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The man with the second-most interruptions, New Jersey Democrat Cory Booker, also demanded more time to review the newly released documents. Like Blumenthal, Booker announced his opposition to Kavanaugh as soon as the appointment was made, declaring that he already knew that "Judge Kavanaugh has an immensely troubling record." Booker followed up later in July to declare that Kavanaugh's confirmation hearing was "a moral moment" in which "there is [sic] no bystanders. You are either complicit in the evil … or you are fighting against it."

If that's true, then why do either need more time to look at documents from Kavanaugh's time outside the judiciary? Both Booker and Blumenthal closed their minds long ago on Kavanaugh, making further document production superfluous. The same is true of all the other Democrats on the Judiciary Committee, especially California's Kamala Harris, who announced her opposition to confirming the nominee before Trump made his selection. Under those circumstances, none of the Democrats needed to read one single document, at least not for the purposes of the hearing.

Not long after the attempts to obstruct the hearing began, NBC's Kasie Hunt reported that the interruptions were part of a strategy to derail the hearings coordinated by Senate Minority Leader Chuck Schumer. It stood no chance of stopping Kavanaugh's hearing, but it did offer Democrats on the panel lots of opportunities for sound bites. That will go a long way toward pacifying activists in their base who demanded all stops be pulled in defeating Kavanaugh's confirmation, even if their previous nuclear-option strategy (authored by Harry Reid and Schumer) is what keeps Democrats from having any influence on the process at all.

Sen. Ted Cruz (R-Texas) lashed out at Democrats for attempting to "relitigate the 2016 election," but the problem goes well beyond that. The bitter partisanship on display in the confirmation wars has far deeper roots, reflecting the corrosiveness of the political climate at large and especially the stakes for each seat in the federal judiciary.

Sen. Ben Sasse (R-Neb.) tried to inject a note of rationality into the bizarre spectacle. The problem goes beyond the disingenuous demands over process particulars, he noted in his opening statement, to the breakdown of the legislative process. The reason that Supreme Court nominations have become such a high-stakes game is that the legislature doesn't want to conduct tough votes on policy, Sasse stated.

"We've accepted a new theory about how our three branches of government should work, and in particular the judiciary," Sasse explained. Congress keeps dishing out its authority to the executive and judicial branches out of a craven impulse to avoid governing in ways that might cost incumbents votes. "If people want to want to get re-elected over and over again and that's your highest goal," he continued, "then actually giving away your power is a pretty good strategy." The end result, Sasse concluded, is "Congress has decided to self-neuter," in favor of leaving tough decisions to the other two branches, and "that means the people are cut out of the process." That, Sasse declared, is why "every confirmation hearing now is going to be an overblown politicized circus."

It's certainly why the hearings have become not just an afterthought but entirely superfluous. With legislative activity moving to the judiciary, it's no longer enough to have qualified jurists appointed to those positions to act as neutral referees on congressional and executive action. Both sides want activists to legislate for life from those spots, and both sides are willing to play hardball to win their voter-free elections in the form of confirmation votes.

Ironically, of course, jurists like Neil Gorsuch and perhaps to a lesser extent Brett Kavanaugh could be the solution to this conundrum. A Supreme Court that sticks to an originalist reading of the Constitution would deflect political and policy questions back to the political and policy branches, rather than carve out more jurisdiction for themselves in one direction or another. Unfortunately, the process has become so embarrassing and such an obvious put-on that few can trust either side to nominate and confirm justices truly interested in that kind of reformed view of the judiciary.

The best for which we can hope is that such nominees manage to eke their way through the gladiatorial process that decades of game-playing has produced — a process that, like the opening of the Kavanaugh confirmation hearing, is full of sound and fury signifying nothing.