In 1993, Senator Orrin Hatch, a Republican from Utah, said that Supreme Court nominee Ruth Ginsburg, nominated by Democrat Bill Clinton, would have a “relatively easy time” with her Supreme Court Nomination. He went on: “the Supreme Court has its political aspects, but it is the least politicized institution in our society, and I would like to keep it that way as much as I can.” Justice Ginsburg was nominated to the Supreme Court by a vote of 96-3.
In 2018, for any Senator to make such a claim would be considered blasphemous. At the end of this week, the Senate will vote on the confirmation of Brett Kavanaugh. Based on the decision of about five Senators, one side thinks that it will win and that the other will lose. Regardless of the result, however, I think the country has already lost. In the partisan fight over Kavanaugh, both parties have abandoned norms, forgotten objectivity, and sacrificed decency. And nothing suggests that any of this will come back anytime soon.
From the moment Brett Kavanaugh was nominated, the Left was intent to #stopKavanaugh. At first, the #resistance was due to Kavanaugh’s judicial philosophy. He was going to overturn Roe v. Wade, they said. Democrats argued it wasn’t enough that he said the case was “precedent.” He needed to also say that it was “correctly decided.” Then Kavanaugh’s views on US v. Nixon came under scrutiny, as some believed this forebode future Justice Kavanaugh limiting the Mueller investigation’s ability to subpoena the President. Asking tough questions based on these views is appropriate. To reject a nominee—one who most agree is qualified in terms of experience—because his judicial decisions disagree with your politics is to deny the idea that elections have consequences.
Then came the sexual assault allegations. Democrats rightfully pushed for a hearing with Kavanaugh and his accuser, Christine Blasey Ford. After the hearing, they demanded an FBI investigation, which they got. But now Democrats claim that the investigation was too limited. They also want Kavanaugh’s underage drinking investigated too. The fact that virtually no Democrats (with the possible exceptions of Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia) will vote for Kavanaugh is immaterial to them. Meanwhile, an objective observer grows sympathetic to the claim that Democrats are attempting to delay the vote indefinitely.
The Right is equally to blame. Republicans are rushing to hold a vote for Kavanaugh even though they are most likely going to keep the Senate this fall. Why not investigate all allegations and make a fully informed decision? Sarah Sanders told reporters that Kavanaugh should receive an up-or-down vote from the Senate because “that’s what’s supposed to happen in every single one of these instances.” Does she think we have amnesia? These claims fall on deaf ears for anyone who can remember the name Merrick Garland, whose nomination remained before the Senate for ten months and, despite sitting on the same DC Circuit Court as Kavanaugh, did not receive a hearing or a vote.
Throughout the ongoing saga involving sexual assault allegations against Kavanaugh, Republicans accuse Democrats of eliminating the “presumption of innocence” (i.e., that one is innocent until proven guilty). But Kavanaugh is not on trial. His hearing is a job interview. If you were an employer, would you hire someone who had multiple sexual assault allegations? Who is accused of being a belligerent drunk and getting into altercations while intoxicated? Who yelled at you in the job interview? Now consider the fact that the job for which this applicant is interviewing has life-tenure. And the impact of this job has implications for millions of Americans. Despite all of this, only a few moderate Republican Senators (Jeff Flake from Arizona, Lisa Murkowski from Alaska, and Susan Collins from Maine) are even considering voting “no” on Kavanaugh.
On Kavanaugh, where you sit is where you stand. And that’s the problem.
The Constitution requires that the Senate provide “advice and consent” to the President when it comes to appointments to public positions. In the modern era, advice and consent have turned into harangue and demonization. The only bright spot these past weeks was when Senator Jeff Flake, a Republican from Arizona, signaled to his friend Chris Coons, a Democrat from Delaware, to talk in private during the Kavanaugh hearing. In their closed-door discussion, Flake agreed to hold his final confirmation vote until the FBI conducted a limited investigation into the sexual assault allegations against Kavanaugh.
To all partisans and #resistors: take note. The most significant development in the story came from two moderates (friends, I would note) who came to a reasonable compromise. Please, sir, I want some more.
In 1993, Senator Orrin Hatch said: “the point that needs to be made is that this Senator rejects the concept that any single litmus test should stop somebody from serving on the Supreme Court because if we start deciding who serves there purely on political grounds, then we will politicize that institution which I think means so much to all of us.” Unfortunately, we must now consider the institution politicized. Split apart at the seams. This is what the destruction of Democracy looks like.