It’s All Very Confusing

COMMENTARY Courts

It’s All Very Confusing

Sep 7, 2018 2 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.
U.S. Supreme Court nominee Brett Kavanaugh takes questions during his Senate Judiciary Committee confirmation hearing. Jeff Malet Photography/Newscom

As the confirmation process for Supreme Court nominee Brett Kavanaugh nears its conclusion, it is only getting more confusing.

Kavanaugh’s hearing before the Senate Judiciary Committee began yesterday at 9:30 a.m. Chairman Chuck Grassley (R., Iowa) managed to speak exactly thirteen (count ’em, thirteen) words before Senator Kamala Harris (D., Calif.) interrupted, demanding that the hearing be postponed.

Harris insisted that senators needed time to review the latest batch of documents about Kavanaugh’s service in the executive branch. The Senate, she argued, must have a complete record on Kavanaugh before it can make an informed decision on his nomination.

Senator Richard Blumenthal (D., Conn.) jumped in, making a motion to adjourn the hearing until the record was complete. Senators Cory Booker (D., N.J.) and Mazie Hirono (D., Hawaii) than joined the echo chamber.

Whether this display was coordinated, orchestrated, or something else, it was certainly strange. Harris, after all, had already said that all the names on President Trump’s list of potential Supreme Court nominees, including Kavanaugh, “are complete non-starters. . . . We cannot and will not accept them.” Hirono also said that she would oppose them all: “It doesn’t matter who [Trump] is putting forward.” That was on June 27, nearly two weeks before Trump chose Kavanaugh and 69 days before the Judiciary Committee hearing began.

Others waited until an hour after Trump announced the Kavanaugh nomination to declare their opposition. On July 9, Blumenthal said that “I will be a ‘no’ vote on this nominee” because of “Judge Kavanaugh’s record and writings — which I have reviewed.” Booker said that “I’m strongly opposed because . . . Kavanaugh has an immensely troubling record.”

Such pre-judgment was not limited to members of the Judiciary Committee. Also on July 9, Senator Elizabeth Warren (D., Mass.) said: “I have reviewed his record” and “I will be voting no.” Four days later, Senator Debbie Stabenow (D., Mich.) said: “After reviewing his record, I believe it is in the best interest of the people of Michigan for me to oppose the nomination of Judge Kavanaugh.” That same day, Senator Tammy Duckworth (D., Ill.) said: “After carefully reviewing Judge Kavanaugh’s opinions, speeches, presentations and prior confirmation hearing testimony . . . he will not have my vote.”

No one, I’m sure, wants to assume that senators would make up their minds on something as important as a Supreme Court nominee without a solid basis and due diligence. But here’s where it gets really strange.

What happened between the nomination — when these senators had already reviewed Kavanaugh’s record and knew enough to announce their opposition — and the Judiciary Committee hearing on September 4?

Well, Kavanaugh submitted more than 17,000 pages of material about his speeches and articles with his committee questionnaire. The committee received more than 450,000 pages of material from the George W. Bush presidential library and the National Archives. Most of that material was made public, and the rest was made available to Judiciary Committee members and their staff. The nearly 700 judicial opinions (spanning 10,000 pages) that Kavanaugh wrote or joined while serving on the U.S. Court of Appeals were already publicly available.

How could obtaining a half-million more pages of material about Kavanaugh’s professional work over a period of ten weeks mean that senators knew so much less about him than before? How could receiving more information about Kavanaugh than about the previous five Supreme Court nominees combined make senators who had already made up their minds demand that the hearing be postponed so they could study Kavanaugh’s record?

It’s all very confusing.

This piece originally appeared in National Review on 9/5/18