Brett Kavanaugh Runs the Gauntlet

Between September 4 and 7, 2018, Brett Kavanaugh, President Trump’s nominee to the Supreme Court of the United States, will face a barrage of questioning before the Senate. Kavanaugh is a 12-year veteran of the Court of Appeals for the District of Columbia Circuit, and was nominated to fill the vacancy left by Anthony Kennedy’s retirement. Kennedy, widely regarded as the Court’s “swing vote”, was often the deciding factor on whether the Court’s rulings were more favorable to conservative or liberal factions. By nominating the 53-year old Kavanaugh, President Trump has the opportunity to replace Kennedy with a young, reliably conservative justice, setting the stage for a ferocious confirmation hearing before the U.S. Senate.

If his hearing proceeds like other recent Senate confirmations, Kavanaugh will face much fiercer questions from Democratic Senators than their Republican counterparts. For his part, Kavanaugh will likely strive to provide carefully rehearsed, unremarkable responses to each line of questioning. Ultimately, however, the hearing may not really end up being about Kavanaugh or his qualifications. Most Senators likely have already made their decision about Kavanaugh, and this hearing is merely an opportunity for both Democrats and Republicans to score political points with their constituents.

It is relatively rare for a Supreme Court nominee to be rejected by a vote in the Senate: only twelve nominees have ever been explicitly rejected. The most recent rejection of a nominee was Robert Bork, President Reagan’s appointment to the Court in 1987. In 2005, Harriet Miers’ nomination was withdrawn by President George W. Bush when it became clear that she would not receive sufficient support to be confirmed. Controversially, Merrick Garland, nominated in 2016 by President Obama to replace the late Antonin Scalia, did not receive a vote at the behest of Senate Republicans, who argued that given the proximity to the next election President Obama’s successor should select the nominee. Justice Scalia’s seat was eventually filled by Neil Gorsuch, who was nominated by President Trump.

Given the potential for the ideological shift of the Court following Justice Kennedy’s retirement, it is no surprise that both Republicans and Democrats seem determined to take a hard line with regards to Kavanaugh. With regard to recent nominations, votes have become increasingly divided along party lines. Whereas Justices Scalia, Kennedy and Ruth Bader Ginsburg were confirmed with 98, 97 and 96 votes respectively (out of 100 Senators), the most recent votes have been far more contentious. Chief Justice John Roberts, nominated by President George W. Bush, received only 78 votes, with 22 Democrats voting for and 22 Democrats voting against confirmation. Justice Samuel Alito, also nominated by President Bush, received only 4 votes from Democrats. Justices Sonia Sotomayor and Elana Kagan, both nominated by President Obama, were confirmed with only 9 and 5 votes from Republicans, respectively.

The fight to replace Justice Scalia after his death in February of 2016 was the most bitter in recent memory. Merrick Garland, the Chief Judge of the Court of Appeals for the District of Columbia Circuit, was a widely respected, if liberal, nominee of President Obama. After Republicans refused to consider Garland’s nomination, the Democrats filibustered the confirmation vote of Neil Gorsuch. Senate Republicans in turn invoked the “nuclear option”, breaking the filibuster with a simple majority vote and confirming Gorsuch to the Court. Only 3 Democrats, all of whom faced difficult re-election races, voted in favor of confirming Gorsuch.

As the Republicans remain in control of the Senate through a slim simple majority and have vowed to move quickly to confirm Kavanaugh, it is unlikely that the Democrats can derail his nomination. However, it is almost certain that they will be on the attack throughout the confirmation hearing. Democrats will attack Kavanaugh on his ideological beliefs, his rulings during his service as a judge, his time as an assistant to independent counsel Kenneth Starr during the investigation of President Bill Clinton, and a myriad of other topics.

Ultimately, because the Democrats are unlikely to be able to prevent a confirmation, it is likely that they will instead take the opportunity to score political points in anticipation of this November’s elections. By using the hearing to not only to challenge Kavanaugh’s competency to serve on the Supreme Court, but also to highlight the Court’s likely shift towards a more conservative outlook, the Democrats are afforded a high-profile occasion to attack President Trump, his administration, and Republican control of Congress. Although questions may be specifically directed towards Kavanaugh, they should be viewed in a larger context as strategic for both Democrats and Republicans as they drive towards midterm elections.

While confirmation hearings ostensibly offer Congress and the public an opportunity to gain insight into the ideology and qualifications of a nominee, the process has transformed into a showcase for political theater. In today’s partisan climate, votes on important issues and candidates are frequently decided by party affiliation. It is probable that the ultimate vote on Kavanaugh will hinge on political, not ideological, considerations. Republican leadership will urge every Republican Senator to confirm Kavanaugh. Most Democrats will vote against Kavanaugh’s confirmation, but a handful in politically conservative parts of the country may cross party lines to vote for confirmation in order to satisfy voters. In the end, though, it is unlikely that this week’s hearings will change many, if any, Senators’ minds as to whether Kavanaugh is fit for a Supreme Court seat.

Is the political posturing ultimately worth it? On the one hand, these types of hearings are indicative of the rhetoric which now defines the relationship between the Republican and Democrat parties today. On the other hand, the appointment and eventual confirmation of a Supreme Court Justice is a rare opportunity that offers a chance to influence the Court, and thus the nation, for a generation or longer. Either way, Mr. Kavanaugh faces an interesting week of intense scrutiny and attention as the focus of a larger political drama.