Transport yourself back in time to any point in the last 20 years and imagine you were told there would be a Supreme Court nominee who could potentially provide a decisive fifth vote on the High Court to narrow or overturn Roe v. Wade. You’d imagine that the top headline out of the confirmation hearings would read something like: “Democrats Mount Fierce Defense of Abortion Rights.” Instead, the top headline from the Brett Kavanaugh hearings reads something like: “Democrats Go Nuts Over Confidential Documents.”
Democrats’ decision to focus on process issues—repeatedly interrupting the Republican chairman’s opening remarks and demanding that the hearing be adjourned until additional documents could be reviewed—was curious. As White House staff secretary for President George W. Bush, Kavanaugh saw a tremendous amount of paper cross his desk, some of which was subject to executive privilege. Not covered by privilege, Republicans noted, were 307 opinions Kavanaugh had written as an appeals court judge, over 400,000 pages of documents from his time in the White House, and 17,000 pages of speeches and teaching materials.
From another perspective, the Democratic strategy made perfect sense: They were playing the hand they had been dealt, and it was a bad hand. With Republicans holding a 51-49 Senate majority, Democrats’ only hope of defeating Kavanaugh would require all Democrats and two Republicans who support a right to abortion (Susan Collins of Maine and Lisa Murkowski of Alaska) to vote against him. But Murkowski and Collins gave no sign they would subject Kavanaugh to a pro-abortion litmus test that no sitting Supreme Court justice has had to pass at his or her confirmation hearings. Kavanaugh explained how precedent is important for constitutional jurisprudence, but he declined to provide any hints about whether he might overturn any precedent, including Roe v. Wade, that might come before the Court.
With the hope of actually defeating Kavanaugh so dim, it made political sense that Senate Democrats would not want the hearings to overwhelmingly focus on abortion. Democratic hopes of winning the Senate in November depend on incumbents holding their seats in several deep-red states. Senators Joe Donnelly of Indiana and Joe Manchin of West Virginia are self-described “pro-life” Democrats. Incumbent senator Claire McCaskill is up for reelection in conservative Missouri, and she has a very liberal record on abortion and judges that might make her vulnerable.
On the second day of the Kavanaugh hearings, North Dakota GOP Senate candidate Kevin Cramer released a TV ad in which his two daughters, one of whom is visibly pregnant, criticize Democratic incumbent Heidi Heitkamp for opposing a late-term abortion ban that included an exception for when the mother’s life is endangered. In 2012, Heitkamp said that “late-term abortions should be illegal except when necessary to save the life of the mother.” That year, Heitkamp won her first term by less than 1 percentage point. In 2016, Hillary Clinton lost North Dakota by 36 points.
Heitkamp, Manchin, and Donnelly were the only Senate Democrats who voted to confirm justice Neil Gorsuch in 2017, and they’re under pressure to vote for Kavanaugh in 2018. When asked if anything from the hearings had disqualified Kavanaugh, Heitkamp told CNN’s Manu Raju, “Not so far.”
“No, I haven’t seen anything from that standpoint,” Manchin told CNN, responding to the same question. “He’s handled himself very professionally.”
But Democrats still needed to show their base that they were fighting, so they put process issues front and center. That wasn’t enough to satisfy many liberal activists. “The Supreme Court is on the line, and you are failing us,” reads a letter to Minority Leader Chuck Schumer from 13 progressive groups. “Your job as Senate Democratic leader is to lead your caucus in complete opposition to Trump’s attempted Supreme Court takeover and to defend everyone threatened by a Trump Supreme Court,” they wrote. “But unbelievably, nearly two dozen Democrats have still not come out against Kavanaugh, and just last week, you helped Majority Leader Mitch McConnell fast track 15 Trump judicial nominees. That is not the leadership we need.” As the liberal website ThinkProgress reported, activists were calling on Schumer to threaten to revoke committee assignments and cut off campaign funds to any Democrat who votes for Kavanaugh. But it doesn’t make political sense for Schumer to force red-state Democrats to walk the plank in a hopeless effort to defeat Kavanaugh.
None of this is to say that the culture wars were absent from the Kavanaugh hearings.
Several Democrats questioned Kavanaugh about abortion, but the performance art of protesters who dressed up like women in the feminist dystopia The Handmaid’s Tale probably got more attention.
On matters of race, a principled legal discussion of affirmative action did not grab headlines. The greatest controversy on social media from the first day of the Kavanaugh hearings was whether a former White House lawyer sitting behind Kavanaugh was flashing a white nationalist hand-sign on television—by crossing her arms and letting her index finger touch her thumb while her other three fingers were extended. The controversy was insane.
On guns, Kavanaugh’s thoughtful exchange with Democratic senator Dianne Feinstein about whether certain semi-automatic rifles were protected by Supreme Court precedent was similarly a snooze. What did grab attention were accusations that Kavanaugh had snubbed the father of a daughter who was killed at the Parkland, Florida, high-school massacre. Video of the incident shows Kavanaugh being approached by a man he doesn’t recognize at lunch break, and walking away as someone rushes to escort him. The controversy was ridiculous, but it did provide liberal activists an opening for smearing Kavanaugh as insensitive to school-shooting victims.
So the culture wars are raging as intensely as ever. But as the Kavanaugh hearings demonstrate, their defining feature in 2018 is not their intensity but their stupidity.
