Theater, much like Japan’s Kabuki. That’s all the Supreme Court confirmation process is. President Trump’s presentations of his two nominees, Judge Neil Gorsuch last year and Judge Brett Kavanaugh on Monday, were uncharacteristically graceful — a worthy theatrical innovation, in the view of even some Trump critics.
Now, we get to watch television clips of Kavanaugh’s visits to senators’ offices — where he’ll likely never return to after the play-acting is over — with cordial words from Republicans who are certain to vote for him, and maybe even from Democrats certain to vote against.
Then, there will be hearings before the Judiciary Committee, presided over by the folksy but canny Chairman Chuck Grassley. The ranking Democrat, Dianne Feinstein, may be a bit restrained by her earlier imposition of what sounded like a constitutionally prohibited religious test for office on another judge on Trump’s Supreme Court shortlist.
This process is ostensibly to enable senators to make informed decisions. But Kavanaugh is certain to invoke the 1993 precedent set by his D.C. Circuit predecessor Ruth Bader Ginsburg in refusing to say how she’d vote in any case.
Sure, everybody knows judges shouldn’t make decisions off the tops of their heads. But everyone also knows that they have to deny ammunition to the other side. Judge Robert Bork in 1987 did the opposite, unfortunately for his nomination. Supreme Court nominees for years have been very smart people, able to deftly avoid this mistake.
Of course, everyone knows the outcome of the play, as they do when they go see “Hamlet.” Praise from liberal legal scholars Akhil Reed Amar and Benjamin Wittes won’t make any difference in the outcome. Judge Kavanaugh will be confirmed, with all Republican and perhaps a few Democratic votes.
Curiously, our constitutional republic managed to get along for 127 years without Senate hearings on Supreme Court nominees, and for the next 61, many justices were confirmed after perfunctory hearings or none at all. Today, ever since the hearings on Bork and Justice Clarence Thomas in 1991, the confirmation process has been just theater.
Any suspense about the outcome has been eliminated by Senate Democrats’ decision to end the filibuster for lower court nominees and then threatening one against Gorsuch. This predictably led Republicans to apply their rule to Supreme Court nominees as well — not a hard choice, given that Democrats had promised they would do the same just before they unexpectedly lost the 2016 election. Sometimes, partisan rage leads politicians to do self-defeating things.
And journalists too. CNN’s legal expert Jeffrey Toobin quickly tweeted that Kavanaugh’s confirmation would mean “abortion illegal; doctors prosecuted; gay people barred from restaurants, hotels, stores; African-Americans out of elite schools; gun control banned in 50 states; the end of the regulatory state.”
That’s mostly silly. How many commercial establishments want to bar gay people (assuming they could even identify them)? How many elite schools want to reject all black applicants?
As for abortion, Democrats have predicted that every Republican nominee would overturn Roe v. Wade. But Roe isn’t even the operative precedent today. Planned Parenthood v. Casey later allowed some restrictions on abortion and recognized that medical progress might require allowing more. Assumptions that the “arc of history” would always move toward abortion are being undermined at every step by polls and practice.
Polls show stable views on abortion, with most Americans favoring additional restrictions, and younger voters, if anything, more anti-abortion than their elders. And in practice, abortions are increasingly rare despite the growing population. The pro-choice Guttmacher Institute reports that the peak year for abortions per woman aged 15-44 was 1982, and the peak year for total abortions was 1990.
Since then, the number has fallen from 1.6 million annually to less than 1 million. Fully 44 percent of abortion facilities are located in just two states, California and New York, according to one pro-life group, and 48 percent of abortions are performed in just five states — those two plus New Jersey, Florida, and Illinois. A reversal of Roe and Casey would allow states to criminalize abortion, but states in which about 80 percent of current abortions are performed certainly won’t.
Toobin’s tweet got one thing right. A Justice Kavanaugh, with Justice Gorsuch and others, might produce a consequential change is in eroding or overturning the Court’s 1984 Chevron decision, requiring courts to defer to regulatory agencies’ interpretation of statutes. Reversal would require Congress to make hard choices rather than punt to unaccountable and anonymous regulators.
That resembles moves by some members of Congress who want to reclaim the right to make trade policy rather than leaving it to the president. The result might be fewer and more transparent laws.
But that’s a subject for later columns, after the confirmation play-acting ends and Kavanaugh takes his seat with his eight new colleagues.
