It was never really about the alleged sexual assault. Or the beer drinking. Or the scribblings in a high school yearbook. Or the alleged lying. Or even judicial temperament. For the vast majority in the Senate as well as the general public, the battle over Brett Kavanaugh was a fight for political control of the Supreme Court. The framers of our constitution would understand, but they would also be disappointed. In perception, if not reality, their plan for an independent judiciary has failed.
To be sure, there are people who changed their minds on the nomination of Brett Kavanaugh to the Supreme Court. Some early supporters of Kavanaugh found his emotional and combative testimony disqualifying, while others were persuaded that a credible allegation of sexual assault, even without corroboration, must be accepted as true. There are also people who opposed Kavanaugh, but changed their minds after witnessing his treatment at the hands of Democrats, and the abandoning of the presumption of innocence.
However, for all but a handful of senators who would determine Kavanaugh’s fate, the die was cast long before the allegations of sexual assault, excessive drinking, uncouth teenage behavior — and before the allegations of a lack of judicial temperament and lying to the Senate Judiciary Committee. In the end it came down to the same handful of senators whose votes were in question from the outset. And those few votes were thought to depend on politics, not Kavanaugh’s merits. Whatever the truth of Dr. Blasey Ford’s accusation, she was made a pawn in a nasty political campaign to sway the votes of Republican senators Murkowski, Collins and Flake and Democrat senators Heitkamp and Manchin.
The effort succeeded with Senators Heitkamp and Murkowski, but failed with the other three. Among Republican senators, only Murkowski was persuaded by the case against Kavanaugh. Among Democrats only Manchin found Kavanaugh qualified for a position on the Supreme Court. It is impossible to describe that outcome as anything but a highly partisan contest for political control of the high court.
Until Kavanaugh’s confirmation, the Court was split evenly between liberals (appointed by Democratic presidents) and conservatives (appointed by Republican presidents). Republicans prevented Democrats from gaining a 5-4 advantage with their refusal to act on President Obama’s nomination of Merrick Garland, a clearly qualified nominee. Democrats were determined to return the favor, whether or not the nominee was qualified. In the Garland nomination Republicans had the votes, so we cannot know whether they would have stooped to character assassination. The problem for the Democrats is that they do not have the votes, so to have any hope of defeating a clearly qualified conservative nominee they were forced to descend to debating an alleged ice-throwing incident in Kavanaugh’s distant past.
Everyone seems to agree that the process was an embarrassing disaster. But opinions about the nature and causes of the disaster are as divided as opinions on the Kavanaugh nomination itself. Each party blames the other, offering little hope for a return to near unanimous confirmations of qualified judges nominated by presidents of either party.
If there is hope, it will require senators of both parties to take to heart the lecture delivered by Senator Sasse during the Judiciary Committee hearings and the statement of Senator Collins in announcing her intention to vote for Kavanaugh‘s confirmation. Sasse explained to his colleagues a major reason judicial confirmations have become so partisan — Congress has abandoned the politically hazardous task of passing clear and precise laws that do not require the courts to fill in the blanks and thus effectively engage in policy making. In a tour de force, Collins reminded her colleagues on both sides of the aisle what it means to “advise and consent” to a presidential nomination — giving a nominee a fair hearing focused on judicial qualifications and not declaring opposition before the hearings begin– or even before a nominee’s name is revealed.
There seems little doubt that had the tables been reversed, Republicans would have been digging for dirt to besmirch an otherwise qualified nominee of a Democratic president. It is the way of most elections in this age of ultra-partisanship. Neither party has clean hands in this now-recurrent spectacle.
Nor are the voters free from blame. When a senator’s vote on a Supreme Court nominee turns largely on predictions of how confirmation might affect partisan interests without regard for the law–not to mention its anticipated impact on the senator’s prospects for re-election–we are doomed to re-live the nightmare that was the Kavanaugh confirmation process.
