"Obstruction Masquerading as Silliness"

COMMENTARY Courts

"Obstruction Masquerading as Silliness"

Jul 12, 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.

Key Takeaways

Charles Schumer had insisted that the then-still-unnamed nominee must make “an affirmative statement of support” for particular precedents.

Schumer's not satisfied with hints or forecasts, he wants rock-solid promises. He wants judges to outsource their judging to him and his fellow Senate Democrats.

Deomocrats will oppose Kavanaugh unless he publicly and unequivocally disregards his commitment to impartiality and violates his oath of judicial office.

Once President Trump nominated Judge Brett Kavanaugh to the Supreme Court, the Senate confirmation process began. But by then, the anti-confirmation process was already well underway. Judiciary Committee chairman Charles Grassley (R., Iowa) noted this phenomenon hours before the announcement, characterizing the Left’s tactics as “obstruction masquerading as silliness.” He was right.

Senate minority leader Charles Schumer (D., N.Y.) for example, had insisted that the then-still-unnamed nominee must make “an affirmative statement of support” for particular precedents and for positions on certain issues. In other words, he wants a judicial nominee to commit — in advance and under oath — to how he will decide cases he has not yet seen or heard, cases that today do not even exist. Which cases? The ones that matter to Schumer. Which positions? The ones Schumer wants the judge to take.

Trying to find out how a judicial nominee would vote on certain issues is nothing new. Felix Frankfurter, nominated by President Franklin D. Roosevelt to the Supreme Court, appeared before the Judiciary Committee in 1939. He said that expressing his personal views on issues affecting the Supreme Court would be “not only bad taste but inconsistent with the duties of the office for which I have been nominated.” In 1957, President Dwight D. Eisenhower’s nominee, William Brennan, said that “I do have an obligation not to discuss any issues that are touched upon in cases before the Court.” A decade later, Thurgood Marshall, nominated by President Lyndon Johnson, told the Judiciary Committee: “My position is . . . that a person who is up for confirmation for Justice of the Supreme Court deems it inappropriate to comment on matters which will come before him as a Justice.”

Twenty-five years ago next week, Supreme Court nominee Ruth Bader Ginsburg faced similarly inquiring minds from both sides of the aisle in her confirmation hearing. Like Judge Kavanaugh, she then served on the U.S. Court of Appeals for the D.C. Circuit. Here’s what she said:

Judges in our system are bound to decide concrete cases, not abstract issues. . . . A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Later in the hearing, she told a Republican senator that answering his question “would violate my rule about no hints, no forecasts, no previews.”

But Schumer wants more. He’s not satisfied with hints or forecasts, he wants rock-solid promises. He wants judges to outsource their judging to him and his fellow Senate Democrats. But if mere hints show disdain for the judicial process, what do promises, commitments, and “affirmative statements of support” demonstrate? New judges take an oath before they may perform their judicial duties. As part of that oath, they promise to “administer justice without respect to persons . . . do equal right to the poor and to the rich, and . . . faithfully and impartially discharge and perform all the duties incumbent upon me.”

Let’s be clear about the new standard that Democrats will impose on Judge Kavanaugh. They will oppose him unless he deliberately, publicly, and unequivocally disregards his commitment to impartiality, violates his oath of judicial office (which he has already taken once), and heaps disdain on the entire judicial process.

This is more than silly, this is truly dangerous.

This piece originally appeared in National Review