As the media circus (confirmation hearing) for Judge Brett Kavanaugh got underway on Tuesday, here are the top three things everyone should keep in mind:
1. The Actual Purpose of a Confirmation Hearing
Article II of the Constitution requires that the sitting president nominate individuals to the Supreme Court and the Senate provide “advice and consent.” This is for the purpose of separation of powers and especially checks and balances. If the president had unilateral authority to appoint (as opposed to nominate), then the Supreme Court would become even more politically stacked than it already has been for the past 50-60 years of judicial activism.
What precisely “advice and consent” means is up to the Senate overseeing the nomination. Confirmation hearings are not constitutionally required, and until very recent history, the process for providing consent was largely a matter of paperwork. But with the rise of the media and especially television influence, confirmation hearings have become little more than political posturing and serving media-driven commentary rather than genuinely considering nominees and influencing the actual outcome of the votes.
If the Democrats were approaching the hearing with intellectual honesty, constitutional respect, and the fidelity to the rule of law they claim, they would stay within the margins of discussing Kavanaugh’s actual qualifications as a justice, rather than political posturing. Much of the comments so far targeted President Trump, which is entirely irrelevant to a confirmation hearing, and continues to show that Democrats would oppose anyone nominated, even if the Democrats didn’t have a legitimate basis to do so.
The only purpose the confirmation hearings currently serve is to inflame the public and distort the view of the judiciary and make it political, rather than about fair consideration of a nominee.
2. The Actual Purpose of a Supreme Court Justice
Regardless of which president nominated a justice, the Supreme Court (and all judges at any level) are vested with the obligation to be fair and impartial arbiters. A judge’s role is intentionally non-political, meaning that their own personal policy preferences should not influence the outcome of cases. They should strictly apply the Constitution and the law.
Every federal nominee comes from a presidential (political) administration. The Senate’s job is to determine fairly whether the nominee can set aside their partisan ideals and fairly review cases. But this type of genuine analysis is not being undertaken in the modern confirmation hearing setting.
Does anyone really think that any one senator on either side is approaching the hearings with a genuinely open mind and hasn’t already decided how they will vote on Kavanaugh’s confirmation? In the 57 days since Kavanaugh’s nomination, the Senate has had the opportunity to review more documentation than the five previous Supreme Court nominees combined, and review the more than 300 opinions from Kavanaugh’s time on the D.C. Circuit Court bench.
Every senator had the opportunity, if desired, to privately meet with Kavanaugh. The only purpose the confirmation hearings are currently serving is to undermine the integrity and legitimacy of the process and the judicial branch and set the narrative in the minds of the public that Kavanaugh will not be an impartial judge.
Comments from Sen. Dick Durbin, D-Ill., were possibly the most egregious in attempting to impugn Kavanaugh’s personal integrity and judicial fidelity. He went on for his 10-minute opening statement making accusations of “concealing” of documents related to Kavanaugh’s tenure at the White House under former President George W. Bush, which are rightly under executive privilege.
3. The Actual Qualifications of Judge Brett Kavanaugh
The Senate could actually vote on Kavanaugh’s merits as a qualified, fair, and impartial jurist without even holding hearings. This is how the Senate operated until very recent history. Kavanaugh has been through the confirmation process before, and is not new to the appellate bench. His rulings have been based in law—not policy, politics, or partiality or bias for or against the litigants. His opinions have been upheld at least 13 times by the Supreme Court previously.
Nonpartisan organizations have endorsed him, including the American Bar Association unanimously giving him their highest rating of “well-qualified.” Conservatives, including the Dobson Policy Center where I work, have consistently recognized that “conservative” means dedicated to the rule of law, not a politically-biased outcome.
Solely on the merits, Judge Kavanaugh should become Justice Kavanaugh.
If the Senate were operating fairly—which is supposedly the process the Senate Judiciary Committee Democrats called for in their letter to Chairman Grassley—Kavanaugh’s vote for confirmation would be unanimous.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
