The High Stakes in the Brett Kavanaugh Nomination

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

There were few surprises in the rancorous hearings to commend Brett Kavanaugh for appointment to the Supreme Court. They have now mercifully come to a close.

Were he to fail in getting the simple majority of votes he needs for Senate confirmation it would cause a tsunami shock with reverberations that will rock the political world.

Most likely the outcome is a foregone conclusion and Donald Trump will have his way.

The slender thread upon which the Democrats are hanging their hopes is the possibility that Senators Lisa Murkowski of Alaska and Susan Collins of Maine—both usually reliable Republicans—might have second thoughts because of the nominee’s somewhat ambiguous views about a woman’s right to abortion.

And that assumes that three Democratic Senators running for reelection in North Dakota, Indiana and West Virginia—states which Donald Trump carried—do not commit apostasy.

With the Senate makeup 51-49 in favor of Republicans, it would only require a two-vote swing to defeat the nomination.

Though Kavanaugh insists that he will follow precedent and uphold Roe v. Wade, the landmark decision which legalizes abortion which he has declared “settled law”, there is little doubt in the minds of opponents that his real views on this issue were carefully examined before President Trump’s attorneys selected him and he passed the litmus test.

That strikes fear in pro-choice Democrats who believe that could lead to the overturning of this law which was the culmination of a bitterly fought struggle for decades.

Both of California’s Senators blistered Kavanaugh with questions challenging his trustworthiness to follow precedent.

The state’s senior senator and ranking member of the Judiciary Committee, Dianne Feinstein, zeroed in on the constitutional right to privacy—the bedrock postulate on which Roe is based.

Bristled Feinstein, “The impact of overturning Roe is much broader than the right to choose, it’s about protecting from government intrusion, who to marry, where to send children to school, medical care at end of life and whether or when to have a family.”

Feinstein, who is running handily in front in her bid for a sixth term, carries big clout on both sides of the aisle but it may not be enough to change the minds of her colleagues—particularly the women members.

The state’s junior Senator, Kamala Harris, was especially aggressive, citing emails allegedly showing that Kavanaugh had lied in answers he previously gave in testimony he offered in his confirmation hearings when he was appointed an Appellate Court judge and that he is now lying again.

Strong words.

Harris led the charge on the committee along with New Jersey’s Senator, Cory Booker, and Patrick Leahy, the fiery Vermont liberal, former committee Chair, and veteran of numerous Supreme Court battles in seeking release of thousands of documents and emails that were withheld which could explain more about the nominee’s thinking.

None of this did much to rattle Kavanaugh whose adept but often evasive answers have become a hallmark of Supreme Court hearings with nominees refusing to address what they characterize as “hypothetical issues.”

This has led some observers to label these proceedings a pure sham and farce.

When you tear away the veil, these are finely tuned, carefully orchestrated performances with little purpose other than to have nominees offer as little information as possible and avoid any serious mistakes.

It is almost forgotten that in less politically fraught times under presidents of both parties, justices were confirmed by whopping majorities.

George W. Bush’s nominee, Chief Justice, John Roberts won nomination by a 78-22 vote; Justices Stephen Breyer and Ruth Bader Ginsburg, both Bill Clinton appointees, won approval by 87-9 and 96-3.

David Souter, appointed by George H.W. Bush, was approved 90-9; Justices Antonin Scalia and Sandra Day O’Connor, appointed by Ronald Reagan, were approved 98-0 and 99-0.

John Paul Stevens was appointed by Gerald Ford 98-0.

That era of bipartisan cooperation ended when Barack Obama’s nomination of Merrick Garland in 2016 upon the death of Antonin Scalia was rejected without so much as a hearing.

Republicans, angry with Democrats who under their reign outlawed the filibuster rule for approval of federal judges that called for 60 votes, exercised what was described as the “nuclear option” and extended the courtesy to Supreme Court justices as well.

This process has now produced the circus where even the most qualified nominees in either party can avoid expressing their true beliefs if that is inconvenient.

This has created an apparently permanent tit-for-tat contest that has little to do with the “return to order” which Sen. John McCain pleaded for shortly before his passing and has made a mockery of the process by which we select individuals to the highest judicial tribunal in our land.

This is not only a discredit to the Senate, but a betrayal of a pledge our representatives make to the voters that we put on the court individuals as free as possible of strong biases and distinct ideological taint.

No nominee will ever measure up to the desires of all the voters. There will never be a perfect choice. But we could at least ensure that the process by which they are chosen is the fairest possible.

That is less likely in the current atmosphere consuming Washington where many are coming to believe that a demagogue resides in the Oval Office which sets in motion a process that may be a disservice to even the most qualified candidates.

John Dean, the former White House Counsel to Richard Nixon and a long-time California resident who had much to do with bringing him down in the Watergate scandal, cautioned Senators that if Kavanaugh is confirmed, it would become “the most presidential powers-friendly court in the modern era.”

This presented more than an opportunity to fill a critical vacancy. It places there someone who may ultimately have to rule on the legitimacy of this presidency.

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