We have seen some earnest-sounding opinion pieces which dismiss the current attempt by Democrats to derail the nomination of Brett Kavanaugh as merely tit-for-tat revenge for the Republican’s refusal to schedule hearings for Judge Merrick Garland, President Obama’s nominee to replace Justice Antonin Scalia in 2015.
Indeed, the failure of Republican leaders to hold Advise and Consent hearings left Judge Garland waiting at the gate and the Scalia seat was filled by Trump nominee Neil Gorsuch in 2017. But the two events, despite their apparent similarities as examples of politics at its fiercest, were really very different with entirely different consequences.
It was no secret at the time that Senator Majority Leader Mitch McConnell’s decision not to hold hearings on the Garland nomination was designed to deny President Obama a Supreme Court pick. His stated rationale, though, was that a new president would be elected in November of 2016 and that individual should more properly make the choice – a distinct choice given the stark ideological divide between Obama/Clinton and Donald Trump.
Thus McConnell and friends were loathe to have an Obama choice – presumably with liberal tendencies – get the seat and were willing to shoot the dice on a Trump victory. Really, what did they have to lose? If Clinton won they would be no worse off than if Obama got to make the choice.
Of course the irony of it all is that Judge Garland, who served on the same court as Judge Kavanaugh, voted 93 percent of the time with Judge Kavanaugh when they served on the same panel hearing the same cases! Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh and Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings.
But, for sure, there was something else that drove the battle. It will be recalled that the thrust of the Trump campaign was to roll back the creeping liberalism that he said had overtaken America. And a big part of his agenda was an ideological makeover of the federal courts, including the United States Supreme Court. Seen in this light, McConnell’s refusal to hold hearing on Garland was designed to keep alive the concern that the courts would slide further leftward and add fuel to the Trump campaign.
People can have valid complaints about McConnell’s subjugating the Advise and Consent role of the Senate to pure partisan politics. But the point is that by not allowing those hearings, the Senate majority did, in fact, exercise its constitutional power to either consent to or reject a nomination. So, the Garland nomination rightly went nowhere. But the fight over the Kavanaugh nomination is a very different order of business.
Of course, the Democrats are plainly angling to delay the vote on the confirmation of Judge Kavanaugh until after the midterm elections, hoping that they will pick up Senate seats such that the Republicans will not have a majority of votes to confirm Judge Kavanaugh. So how’s that different from the Garland episode? The difference is that the Democrats are subverting the system, by cynically playing it.
Senator Dianne Feinstein sat on the abuse allegations against Judge Kavanaugh by Christine Blasey Ford for almost two months and then released them only after the Kavanaugh hearings were completed and a confirmation vote scheduled – and then, with her Democrat colleagues, insisted that they be fully investigated by the FBI. Yet these were wholly uncorroborated charges of events from more than 35 years ago, with individuals named by Ford as witnesses denying any knowledge. And there were other palpable inconsistencies as well.
What has now been introduced by Sen, Feinstein, et al., into the Senate deliberative process is the notion that any allegation of sexual abuse, however counterintuitive and uncorroborated, must be credited and taken seriously, even if to do so would provide, as in the Kavanaugh confirmation fight, a mischievous minority of Senators the ability to thwart the will of the majority.
We should be wary of what that portends for the future.