After all the clamor and disruption of the past two years, in a deeply divided nation where political tribalism has infected ordinary friendships and poisoned neighborly relations, a hearing to vet a potential member of the nation’s highest court is still somehow supposed to rise above, to remind Americans of ideals, of the rule of law and a common yearning to do what’s right.
Tuesday’s opening session of the Senate Judiciary Committee’s hearing on President Trump’s nomination of U.S. Appeals Court Judge Brett M. Kavanaugh to the Supreme Court featured name-calling. Shouts from the peanut gallery. People — almost all of them women — firmly escorted from the premises by the Capitol Police. And a world-class display of bickering across party lines.
The setting looked plenty stately on television, an expansive white marble backdrop, a dark wood dais, senators in their best suits, the nominee and his family all spiffed up.
“Confirmation etiquette,” Sen. Sheldon Whitehouse (D-R.I.) called it. And then he pricked that sweetly floating balloon: “It’s mostly a sham.”
Through most of the day, the nominee sat silently in the center of the room, alone at a table below the senators and in front of more than 100 reporters and nearly that many citizens who had waited for hours in line for their few minutes of inspirational democracy in Hart Senate Office Building Room 216.
All around him, democracy happened. It wasn’t pretty. The first seven hours of the Kavanaugh hearing broke down like this:
About three hours consisted of Democrats saying to their esteemed Republican colleagues that they did not provide the documents Democrats need to decide if Kavanaugh should get a lifetime appointment to the nation’s top court, with the Republicans responding to their friends across the aisle that yes, we actually did.
The debate in the greatest deliberative body in the world proceeded more or less as follows:
There was also an hour or so, cumulatively, of Republican tributes to the nominee, along the lines of Arizona Sen. Jeff Flake’s “Congratulations to you and Blessed Sacrament Bulldogs for winning the city championship,” a reference to the accomplished jurist’s coaching of a youth basketball team, and Utah Sen. Orrin G. Hatch’s “You are a smart, decent, normal person.”
This was balanced by about an hour’s worth of detonations aimed at Kavanaugh’s life and work. Democratic senators recalled the nominee’s roles in the investigation into President Bill Clinton’s extramarital affairs, the recount in the 2000 presidential election and the use of torture in the war against terrorism.
There was also about an hour of straight-out campaign speeches, given that there are at least four future and former presidential candidates on the committee. This led to the curious moment in which Sen. Cory Booker (D-N.J.), proud son of Newark, channeled the concerns of those who toil the land, telling Kavanaugh that “farm country is being threatened by the consolidation of huge corporations” and recalling the farmer who told the senator about the soaring suicide rate in the American heartland.
“This democracy is on trial,” said Sen. Amy Klobuchar (Minn.), one of several Democrats to note that the nation is at a crossroads.
Through all this, the nominee’s role was to be silent and appear sagelike. Kavanaugh had spent weeks cloistered in a similar room, dolled up to look like this one, sitting before faux-senators (and some real ones) grilling him just as the committee might. There were even pop-up protests during the practice sessions to bolster the nominee against being rattled by the real thing.
Practice made perfect. In the real thing, Kavanaugh’s expressions ranged from stone-faced to slack-faced. His lips barely moved, even when he took the occasional tiny sip of water. (No gulping; these hearings are a bladder endurance test.) He allowed himself slight smiles at complimentary mentions of his wife and children. Otherwise, he was the Sphinx of Constitution Avenue NE.
Most of the hearing wasn’t so much about picking a great legal mind to weigh vexing moral and political questions as it was another opportunity to consider how Trump has disrupted or damaged democracy, depending on your perspective.
Whitehouse told Kavanaugh that his nomination was actually a raw exercise of political power by a White House struggling to cope with legal jeopardy, a White House with “big expectations that you will protect the president.”
Many Republicans seemed to agree that theories of the law were not the main issue here. Rather, as Sen. Ted Cruz (Tex.) put it, “this is an attempt by the Democrats to re-litigate the 2016 presidential election. . . . Every Democratic member of this committee is going to vote no.” The hearing, Cruz said, quoting the Bard, “is a lot of sound and fury, signifying nothing.”
That seemed a bit harsh to the dozens of protesters who skipped work or school to spend a day wearing colorful T-shirts, lining the bridges across the Hart Building’s atrium, taking a stand in favor of abortion rights (purple shirts) and voting rights (yellow) and civil rights. That last group went well beyond T-shirts. About a dozen women dressed in red robes and white bonnets sought to recall “The Handmaid’s Tale,” the novel and TV show about an America gone totalitarian, a place where women are punished for experiencing sexual pleasure.
The robed women were organized by a group called Demand Justice, one of whose members, Diana Bowen, said senators should reject Kavanaugh because he might lead the court and nation toward a “Handmaid’s Tale” kind of dystopian future.
She remained hopeful that the outcome of the hearings might not be a foregone conclusion. “Impossible things have happened before,” she said.
Indeed, inside the hearing room, a portion of the day was spent on speechifying about what might actually change if this man joins the court and shifts its calculus. There was talk about rights that need protecting and about the eternal debate between those who hew to the original thoughts of the Founders and those who view the Constitution as a document that adapts to the shifting stresses of the passing centuries.
But mostly, there was the same kind of partisan strife that has dominated the nation’s politics for, well, the two sides can’t even agree on how long this has been going on.
Sen. John Cornyn (R-Tex.) denounced the proceedings as “mob rule.”
“What we’ve heard is the noise of democracy,” Sen. Richard J. Durbin (D-Ill.) said. “It is not mob rule.”
Which led Sen. Ben Sasse (R-Neb.) to commiserate with the nominee. “This process has to stink,” he said. “You’ve been accused of hating women, hating children, of hating clean air. . . . This drivel is patently absurd.”
The senators couldn’t even agree on whether their discord was something new. Several Democrats pronounced the Kavanaugh vetting process the worst ever, and several Republicans said, well, actually, it’s been a pretty sad spectacle for a long time, for a good 31 years, since President Ronald Reagan’s nomination of Robert H. Bork to the Supreme Court ended in partisan sniping and a rejection of the judge.
“The Supreme Court has become the substitute political battleground” of the nation, Sasse argued, placing the blame on Congress itself, for devoting its energies to members’ reelection rather than to confronting the country’s most exasperating problems.
Democracy is supposed to be noisy and confrontational, Sasse said, but that clamor should take place in Congress, and the legislative branch’s dereliction has pushed many faceoffs about social and political values into the courts.
For much of U.S. history, Supreme Court nominations were so lacking in controversy that they were approved by a voice vote. But in the TV era, and especially since the Bork hearings, these rites have gone from dull rote to high drama and back to scripted, though still highly partisan, monotony.
The pivot from legalistic questioning to scorched-earth brawls started with Bork, who, after five days of searing questioning, was defeated by a 58-to-42 vote. The judge became a verb — to be “borked” was to be systematically vilified and demolished.
Those hearings produced the ritual that now prevails, with fireworks coming almost entirely from the questioners. The nominees have morphed into anodyne automatons, pleasant but taciturn, generally unwilling to offer much of substance, except perhaps about their pets, sports preferences, love of country and passion for the law.
After Bork and the volatile vetting of Justice Clarence Thomas in 1991, the hearings became more predictable.
Thomas is often credited with launching the now-standard “Pinpoint strategy,” named for the Georgia town where he grew up, an unassuming place Thomas described much as Abe Lincoln told of his lowly log cabin.
“We shared a common bathroom in the backyard which was unworkable and unusable,” Thomas said.
Justice Samuel A. Alito Jr. picked up on that approach in 2006 during his confirmation hearings, describing how his father came to America as an infant and grew up in poverty. Three years later, Justice Sonia Sotomayor spoke of her youth “in modest circumstances in a Bronx housing project.”
On Tuesday, Kavanaugh talked about his mother’s work teaching at all-black McKinley Tech High School in Northeast Washington, about going to Redskins games with his father (in the upper deck, of course), and about his love of law and country. He pronounced himself an optimist.
“I live on the sunrise side of the mountain,” he said, and he delivered his big smile of the day.