5 Absurd Excuses the Left Is Using to Delay Brett Kavanaugh

COMMENTARY Courts

5 Absurd Excuses the Left Is Using to Delay Brett Kavanaugh

Aug 1st, 2018 4 min read

Commentary By

Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Christopher Balducci

Summer 2018 member of the Young Leaders Program at The Heritage Foundation

Senate Democrats wish to delay Brett Kavanaugh's confirmation hearings until 2019. iStock Editorial / Getty Images Plus

Senate Democrats have done an about-face on Judge Brett Kavanaugh’s Supreme Court nomination.

At first, they had no doubt that Kavanaugh was nothing less than an existential threat to the Constitution. If he were confirmed, they said, millions of lives would be lost and the future of America would be nasty, brutish, and short.

Now, they are claiming that we have virtually no idea who Kavanaugh is or what kind of Supreme Court justice he would be. Solving that mystery, they say, requires putting the confirmation process on hold while they access more than 1 million documents related to Kavanaugh’s service in the George W. Bush White House.

This demand raises an obvious question: What is the point of this demand, since the Democrats making it announced their opposition to Kavanaugh before President Donald Trump even announced that he was the nominee?

The answer is equally obvious. The conflict over the Kavanaugh nomination in general, or these documents in particular, is really not about Kavanaugh himself or his qualifications to serve on the Supreme Court. The left is using this confirmation as a proxy for Trump—fighting his Supreme Court nominee means fighting him.

So it’s no wonder that Democrats want to talk about anyone but Kavanaugh. They want to look at anything but his judicial record. That’s not only the best evidence for the kind of justice he would be, but it is already publicly available for anyone to examine.

Let’s take a look at five things Democrats have claimed (and failed to mention) about Kavanaugh’s record in the last few weeks.

1. Kavanaugh got his judicial philosophy from the Bush White House.

First, they tweeted part of a speech in which Kavanaugh called his White House experience “instructive.” Aha, they said—we won’t understand Kavanaugh as a judge until we learn more about that phase of his career.

But it turns out that what Kavanaugh actually said was that his White House experience gave him insight into the legislative and administrative process, not that it formed his judicial philosophy.

2. We need to unearth Kavanaugh’s record in the executive branch.

Democrats say they should get records of Kavanaugh’s executive branch service because Republicans requested records for Supreme Court nominee Elena Kagan when she was working as solicitor general during the Obama administration. Senate Minority Leader Chuck Schumer, D-N.Y., said: “What is good enough for Justice Kagan is good enough for Judge Kavanaugh.”

But Schumer left out two very important things.

Unlike Kavanaugh today, Kagan in 2010 had no judicial record to scrutinize. She had worked in the Clinton White House, she was dean of Harvard Law School, and then she was President Barack Obama’s first solicitor general.

While Kavanaugh has written more than 300 judicial opinions and joined hundreds more, Kagan had written zero. In addition, while Republicans did obtain documents from Kagan’s time in the Clinton administration, they did not get them from Kagan’s time as Obama’s solicitor general.

There’s no need to spend months unearthing Kavanaugh’s record in the executive branch when the most relevant material is already publicly available: in his speeches, law articles, and judicial opinions.

3. He is tainted by the Bush administration.

Democrats claim that Kavanaugh’s records will show that he was involved in controversial Bush-era policies. This is more of a fever dream than a real argument. As others have explained, as staff secretary, Kavanaugh was a gatekeeper, not a policy adviser.

Asking to see all documents that he handled in the White House might serve to reignite disputes with that administration, but it could not possibly reveal anything about Kavanaugh’s qualifications to serve on the Supreme Court.

4. Kavanaugh is a mystery judge.

In a floor speech last week, Schumer said: “There is a lot we don’t know about Judge Kavanaugh.”

This is perhaps the most misleading claim of all. Not only does Kavanaugh have hundreds of written opinions, law review articles, and speeches that reveal his method of deciding cases, he already received not one but two Senate confirmation hearings when he was under consideration for the U.S. Court of Appeals.

Kavanaugh received more scrutiny than 97 percent of appeals court nominees over the past several decades. Schumer should know—he served on the Judiciary Committee for both of Kavanaugh’s hearings.

5. He has skeletons in the closet—somewhere.

When nothing else works, Democrats resort to scare tactics. Schumer asked bluntly in a statement last week, “What are Republicans hiding in Judge Kavanaugh’s record?”

Schumer wants people to believe that Senate Republicans or the Trump administration control all of the records related to Kavanaugh. They don’t. Many of them are housed in the George W. Bush library and are not public records.

This strategy is the political equivalent of a magician’s misdirection. The last thing Democrats want to talk about is the nominee, and the last thing they want the American people to examine is the nominee’s judicial record because it will show what a fair and impartial judge he really is, a judge that follows the law rather than his own preferences or agenda.

That’s the kind of judge the American people deserve. Democrats may go looking for other records, but Kavanaugh’s record already speaks for itself.

This piece originally appeared in The Daily Signal

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