OPINION — It was Ben Sasse — the conservative Nebraska Republican who makes a fetish out of seeming like the last rational man in the era of Donald Trump — who crystalized the issues facing the Senate as it began the most consequential hearing on a Supreme Court nominee in decades.
Stressing the independence of the judiciary, Sasse said, “This is the last job interview that Brett Kavanaugh will ever have.”
That’s why this hearing is different from all other Senate hearings on presidential appointees. There are no do-overs.
An errant Cabinet member (say Betsy DeVos or Wilbur Ross) could be called before Congress to account for her or his actions. And that is likely to happen on a regular basis if the Democrats win back the House or Senate. But the length of a Supreme Court justice’s tenure lies in the hands of God.
The fight over the release of documents from Kavanaugh’s past in the George W. Bush White House is not an arcane Democratic debating point. Rather, it speaks to the central issue in these hearings: Kavanaugh’s views on the unchecked powers of a sitting president.
Kavanaugh, a veteran of the Kenneth Starr investigation of Bill Clinton, had no problems with Star Chamber tactics as he pushed for aggressively questioning the president in graphic terms about his sex life.
But soon Kavanaugh veered in the opposite direction. He even mused aloud in a panel discussion about whether U.S. v. Nixon was wrongly decided. That, relevantly enough, was the 1974 Nixon tapes case in which a unanimous Supreme Court ruled that the president had to hand over the explosive Oval Office recordings to the special prosecutor.
Amy Klobuchar, disdaining the emotional pyrotechnics that characterized other ambitious Democrats on the committee, highlighted the reason why Kavanaugh is different from other potential Trump appointees to the high court.
As she put it, looking directly at Kavanaugh, “There were many highly credentialed nominees, like yourself, [who] could have been sitting before us today. But ... what concerns me is that during this critical juncture in history, the president has handpicked a nominee to the court with the most expansive view of presidential power possible.”
It seems axiomatic that anyone Trump would appoint from the Federalist Society list would be skeptical of Roe v. Wade, critical of limitations on the Second Amendment, resistant to intervening in voting rights cases, dubious of affirmative action, and inclined to take a strong pro-business view in assessing the government’s regulatory powers.
That type of implicit partisanship, alas, comes with the territory — and it is why for three decades Supreme Court fights have been waged over issues far greater than legal scholarship and judicial temperament.
Even Republicans on the committee like Sasse, who are virtually certain to vote for Kavanaugh’s confirmation, expressed their concerns about Trump’s contempt for the rule of law.
Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff......— Donald J. Trump (@realDonaldTrump) September 3, 2018
Trump’s anger was not directed at the alleged corruption (in one case involving misusing campaign funds, and in the other, insider trading). Instead, what aroused the president’s ire was that his attorney general overseeing his Justice Department would jeopardize two GOP House seats. With Trump, there’s no justice, only self-interest.
Hold the mayo
Chris Coons, a rare younger committee Democrat who is not thinking about running for president in 2020, said to Kavanaugh, “Given [your] positions about presidential power ... we have to confront an uncomfortable but important question about whether President Trump may have selected you, Judge Kavanaugh, with an eye toward protecting himself.”
Any answer — however inadequate — to these serious concerns will have to wait until the actual questioning begins Wednesday.
But if Kavanaugh’s opening statement is any guide, there will be no cliché about the judicial system that is too bland for him to repeat. To suggest that Kavanaugh’s words on Tuesday resembled white bread is an insult to wheat-based products sold on supermarket shelves in plastic coverings emblazoned with a corporate trademark.
Here is a sampling of his bromides:
“A judge must be independent and must interpret the law, not make the law.” (That is almost word-for-word from dozens of GOP campaign commercials.) Kavanaugh then quickly added, “I am a pro-law judge,” as if hitherto most Supreme Court nominees had been “anti-law.”
He went on to warn in a grave voice, “The Supreme Court must never be viewed as a partisan institution.” And then — and forgive me if I single out my favorite — Kavanaugh promised to “always strive to be a team player on the Team of Nine.”
What this suggests is that Kavanaugh is likely to be blandly unflappable no matter how vigorous the Democrats’ questioning is on Wednesday. It means that the odds of a damaging admission about abortion rights or any other hot-button legal issue are about on par with the chances that any senator’s position will change based on out-of-state phone calls to his or her office.
Kavanaugh also appears equally unlikely to turn on Trump, no matter how extreme the affront to the rule of law. After all, this is a Supreme Court nominee who said with a straight face, “As a judge and as a citizen, I was deeply impressed by the president’s careful attention to the nomination process.”
All that’s left for the Democrats is to play out their unwinnable hand with the hope that they will be politically rewarded for sounding the alarm about a Supreme Court nominee who would join Mitch McConnell in the Hall of Fame for Trump’s willing enablers.
Walter Shapiro, a Roll Call columnist since 2015, has covered the last 10 presidential campaigns. He is also a fellow at the Brennan Center for Justice at NYU and a lecturer in political science at Yale. Follow him on Twitter @MrWalterShapiro.
Watch: 4 Things Democrats Will Grill Kavanaugh About on Day 2