Judge Brett Kavanaugh’s Opponents Are Getting Desperate and Nonsensical

COMMENTARY Political Process

Judge Brett Kavanaugh’s Opponents Are Getting Desperate and Nonsensical

Aug 16, 2018 3 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.
Hundreds assembled in front of the U.S. Supreme Court in Washington D.C. to protest Brett Kavanaugh. Jeff Malet Photography/Newscom

Key Takeaways

The Constitution assigns the Senate definite responsibilities here.

Demand Justice and other opponents of the nomination are also seeking internal communications from Kavanaugh’s time as White House staff secretary.

If Kavanaugh’s declared Senate opponents do boycott the hearing, perhaps they’ll use the spare time to actually read his opinions.

My dad used to say that it’s better to remain silent and be thought a fool than to speak up and remove all doubt. I should have heeded that advice more often growing up, and some groups opposing Judge Brett Kavanaugh’s nomination to the Supreme Court would do better to heed that advice now.

The group Demand Justice, for example, has an unusual demand. In their latest email blast, they demand that Senate Democrats show that they “take the Constitution seriously” by “boycott[ing] Kavanaugh’s hearings.”

Wait a minute. The Constitution assigns the Senate definite responsibilities here. Specifically, it is supposed to supply advice and consent on presidential nominations.

And, since 1916, an important part of this process has been the Senate Judiciary Committee’s public hearings on Supreme Court nominees. Importantly, these hearings are the only time the public actually hears from the nominee.

Demand Justice says that boycotting this crucial part of the confirmation process will somehow prove that senators take the Constitution seriously? (Insert head-scratching sound here.)

The group’s email also claims that “Kavanaugh has almost four million pages of White House records” and that it’s critical that senators read them all before heading into the hearings. There’s no basis whatsoever for that number, and it’s a smokescreen anyway. The Left simply wants to delay the process as much as possible.

It’s not like they lack reading material regarding the nominee. Kavanaugh gave them more than 17,000 pages of material when he submitted his Judiciary Committee questionnaire. And the committee has publicly released more than 100,000 pages of material it received from the George W. Bush Library. That is in addition to nearly 10,000 pages from the National Archives. At the end of the day, the committee will have received and made public more documents related to Kavanaugh than for any Supreme Court nominee in history.

The Senate is getting all the material from Kavanaugh’s first three years in the Bush administration, including his stint as associate counsel to the president.

But Demand Justice and other opponents of the nomination are also seeking internal communications from Kavanaugh’s time as White House staff secretary. Kavanaugh handled no legal matters in that post.

Whatever documents he handled or emails he sent and received in that position are irrelevant to his Supreme Court nomination. Of course, given the staff secretary’s access to confidential information to and from the president, these communications would include quite sensitive material. This is nothing more than a fishing expedition among material that is unrelated to the task at hand, which is to determine Kavanaugh’s fitness to serve on the court.

Back in 2009, Senate Majority Leader Chuck Schumer, D-N.Y., then a member of the Judiciary Committee, identified a much better approach for making that determination. As he told Supreme Court nominee Sonia Sotomayor, “Your record on the bench” in the past is “the best way to get a sense of what your record will be on the bench in the future.”

Kavanaugh’s record on the bench is extensive. He has served on the U.S. Court of Appeals since May 2006, writing 307 majority or separate opinions and joining 391 others. Those published opinions comprise 8,491 pages and have been publicly available all along.

Clearly, senators already have what Schumer said they need, a complete record of the most relevant and revelatory material from Kavanaugh’s legal career.

In demanding to see thousands of reams of additional and often irrelevant material, groups like Demand Justice call for a different standard for vetting Kavanaugh than for the last Supreme Court nominee who had worked in the White House: Elena Kagan. While the Senate received material about her four years in the Bill Clinton administration, including as associate counsel to the president, no one even asked for material about her service as solicitor general in the Barack Obama administration.

A group named Demand Justice should know that demanding double standards is not the hallmark of justice.

They should also work on their math skills. The Demand Justice email claims that Republicans are trying to “jam through” the Kavanaugh nomination by “rushing his hearing.”

Here comes the math. Over the last 30 years, between the 1988 nomination of Anthony Kennedy and the 2017 nomination of Neil Gorsuch, the average time between nomination and hearing for a Supreme Court justice is 45 days. Kavanaugh was nominated on July 10. His nomination is scheduled for Sept. 4. That’s 56 days — almost 25 percent longer than the average.

The Left doesn’t want Kavanaugh appointed. I get that. But unless “jamming” means “take longer” and “rushing” means “slowing down,” this claim is just nonsense.

There might be a silver lining, though. If Kavanaugh’s declared Senate opponents do boycott the hearing, perhaps they’ll use the spare time to actually read his opinions.

This piece originally appeared in The Washington Examiner