Sep 11

Sep 11 Dissecting Kavanaugh's Senate Judiciary Hearing Controversies By Daniel Tagliarina

Last week the Senate judiciary committee began the confirmation hearings process for Judge Brett Kavanaugh. Kavanaugh is currently a federal judge on the U.S. Courts of Appeals for the D.C. Circuit, as well as President Trump’s nominee to replace the now-retired Justice Kennedy on the U.S. Supreme Court. Modern judicial confirmation hearings have long become political spectacles, and Kavanaugh’s confirmation hearing was no exception. However, Kavanaugh’s confirmation hearing stood out in a couple of important ways.

As has been noted, Kavanaugh has long been a Republican insider, being well connected and showing up during many of the most high profile political battles involving Republicans going back at least to the Ken Starr investigation of then-President Clinton. This long history comes with a commensurately long paper trail. What is somewhat unusual about the Kavanaugh hearings, however, is that a sizeable portion of these records are not being released to Congress for review.

Some documents have been released, including 42,000 pages of documents that were released to the committee mere hours before the hearings were scheduled to begin. These 42,000 pages joined an additional 415,000 pages that had already been turned over to the judiciary committee. Not all of these pages have been made public, as some were deemed sensitive material to be limited to the judiciary committee. Even this immense number of pages do not amount to Kavanaugh’s full record. Moreover, President Trump has blocked the release of 101,921 pages of documents under claims of executive privilege.

Not content with this level of transparency, and feeling blindsided by the last minute release of documents, Democrats on the judiciary committee responded. Sen. Cory Booker (D-NJ) leaked some of the documents, which were supposed to be kept to the committee during the confirmation hearings. He has explained his actions as a means of informing the public, while also framing the decision as a form of civil disobedience over the fact that the committee itself has only received approximately 10% of the documents in Kavanaugh’s record.

Some of the leaked documents touch on issues including abortion, affirmative action, and racial profiling—all of which are hot-button issues that are likely to come before the Supreme Court again in the near future. Republicans on the judiciary committee have treated Booker’s actions as a breach of protocol and civility, further highlighting the intense partisan fighting occurring in the confirmation hearings. Kavanaugh did not directly answer questions about these documents.

This partisan fighting and heightened emotions were reflected in the crowd as well. Protesters frequently interrupted the proceedings, starting about two minutes into the first day of the hearings. At least 227 individuals were arrested across the three day span of hearings held last week.

The protestors expressed a variety of opinions, including concern over the loss of access to safe, legal abortions, but also including issues of workers’ rights, and questions over gun control. While such protests are not unusual in D.C., or even in Congress, the level of disruption during a Supreme Court confirmation hearing is a bit of an aberration.

Amid all of this, there were many statements about who Kavanaugh is, and his extracurricular activities. What was missing from much of the hearing, as has increasingly been the case, is the utter lack of useful information about how Kavanaugh views the constitution, how he would rule in abortion cases, or almost anything related to actual performance as a Supreme Court justice.

While the Senators on the committee tried to frame the narrative to their advantage and to tell the story that they want, ultimately Kavanaugh provided no pertinent information himself (Sen. Cornyn (R-Tex) even reused a baseball analogy for Kavanaugh that John Roberts, now chief justice, used during his confirmation hearings). He might have perjured himself, or revealed earlier perjury, or not, depending on who you ask. It is unlikely that much will come of this. Regardless, the hearings themselves provided no clarity on a person who is very close (a simple Senate majority vote) to receiving a lifetime appointment to the highest court in the land.

Without the need for a supermajority to avoid a filibuster, and with groups handling the pre-nomination ideological vetting, there is little incentive for any nominee to actually provide useful information here. As an informative process, not much was gained. As an important moment in the lead up to the 2018 midterm elections, the process was more revealing. As to what we can all expect regarding presidential power, abortion rights, or affirmative action policies, only time will tell, assuming another party-line vote in the Senate.

Daniel Tagliarina is Assistant Professor of Government and Pre-Law Advisor at Utica College.