On Tuesday, Democrats in the Senate attempted to take control of the first day of confirmation hearings for Judge Brett M. Kavanaugh’s nomination to the Supreme Court, and the result was chaos — or at least, what passes for chaos in the context of a Judiciary Committee hearing, meaning senators politely interrupting each other and raising their objections in measured tones.
But this was unusual, because the Democrats implemented an uncharacteristically coordinated strategy to stop the confirmation hearing as it began. Their objections centered on the Trump administration’s refusal to release tens of thousands of pages of documents from Kavanaugh’s time as a government lawyer, and the fact that just last night, 42,000 pages of documents were finally turned over to the committee.
The idea that the senators could have reviewed them before this morning was ludicrous, so Democrats demanded a delay in the hearings — one after the other, in a series of motions and objections. They repeatedly interrupted the committee chair, Sen. Charles E. Grassley (R-Iowa), who seemed flummoxed by the Democrats’ refusal to simply let him keep the proceedings moving along. Sen. John Cornyn (R-Tex.), mustering all the outrage he could, called it “mob rule.”
This is all theater, of course. But it’s important theater, because the stakes are impossibly high.
The Republican strategy on Kavanaugh’s nomination is clear: to make these confirmation hearings as boring, free of substance, and brief as possible, so Kavanaugh can be confirmed with the public barely realizing it happened.
As they have in previous Supreme Court nominations, Republicans are mounting a campaign of deception, in order to propagate the falsehood that Kavanaugh has no ideological beliefs other than a commitment to the sanctity of the Constitution. He will be purely objective, calling balls and strikes. Not only will he not answer questions about issues that might come before the court, there’s not much point in anyone else debating those issues, either. All they care about is that he’s a man of qualifications and integrity.
This is utter nonsense, just as it was when they played the same game for the confirmations of Neil M. Gorsuch, John G. Roberts Jr., Samuel A. Alito Jr., and Clarence Thomas, the conservatives with whom Kavanaugh will launch a radical revolution in American law, a revolution that will affect all our lives. Ironically, the only person in the GOP who’s remotely honest about this fact is President Trump, who said forthrightly during the campaign that he’d appoint justices who would vote to overturn Roe v. Wade.
But that’s only the beginning.
How far will they go? Having already gutted the Voting Rights Act, they could eliminate almost all campaign-finance laws, as Richard L. Hasen explains. They could strip the government of its ability to enforce laws against discrimination. They could continue to enhance the power of corporations at the expense of workers. They could strike down any limits on gun proliferation. They could strike down future legislation passed by a Democratic Congress and signed by a Democratic president, on health care or regulation of Wall Street or environmental protection or virtually any subject they choose. And of particular relevance to our current moment, they could declare that the president must be immune from any legal accountability regarding his corruption or misdeeds (so long as the president is a Republican).
Not only could they do these things, they almost certainly will. The closest thing to a swing vote on the court will be Chief Justice Roberts, who only looks like something less than the conservative ideologue he is because he sits beside unrestrained radicals such as Alito and Thomas.
There is a simple reason Republicans want to do everything they can to conceal that agenda and pretend that Kavanaugh will be, as he will say later today in his opening statement, “a neutral and impartial arbiter” who doesn’t “decide cases based on personal or policy preferences.” It’s because they know how unpopular that agenda is with the public.
But they’ll carry it out anyway, for a simple reason: because they can. As I have explained before, we are living in an age of minority rule, in which the system allows the Republican Party to control the presidency, the House and Senate even at times when it has won fewer votes for all three. Despite the fact that Democrats have won the popular vote in six of the past seven presidential elections, five of the nine seats on the Supreme Court will have been filled by Republican presidents. And in Kavanaugh’s case, a justice appointed by a president who got fewer votes than his opponent will be confirmed by a group of Republicans who hold a slim majority despite the fact that in elections for the current Senate, 15 million more votes were cast for Democrats than for Republicans.
There is one final reason Democrats have every right to be outraged that Republicans are trying to sail Kavanaugh’s nomination through with the smallest amount of scrutiny possible. The only reason he will be able to move the court so dramatically to the right if he is confirmed is that Senate Republicans stole a Supreme Court seat, refusing to allow Judge Merrick Garland to even get a hearing, let alone a vote, when he was nominated by President Barack Obama to fill a vacancy in 2016.
So spare us their huffing and puffing about Democratic obstruction. Democrats could glue the doors to the Judiciary Committee’s hearing room shut, and it would not be even a fraction as offensive to democracy or the Constitution as that despicable act, which was supported by not just every Republican senator but by the entire Republican Party. If we lengthen Kavanaugh’s confirmation process by a day or a week so we can discuss the implications of his nomination in some more detail, it’ll be more than worth the trouble.