“The judge’s job is to interpret the law, not to make the law or make policy,” said Judge Brett M. Kavanaugh, President Trump’s nominee to fill the retired Justice Anthony Kennedy’s seat on the Supreme Court, in a speech he delivered at Antonin Scalia Law School in June 2016. “Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.” Progressives detest Judge Kavanaugh’s conservative philosophy of judicial restraint. They want a Supreme Court filled with progressive judges in their own image, willing to bend the Constitution to fit their policy preferences. Thus, they will use every trick in the book to try and bring Judge Kavanaugh down, as they did to Robert Bork and nearly succeeded in doing to Justice Clarence Thomas. However, so long as Senate Republicans stick together to vote for this eminently qualified mainstream conservative jurist, there is little that the Democrat obstructionists can do in the end to stop the Kavanaugh train. First, however, Judge Kavanaugh must endure four grueling days of his confirmation hearing before the Senate Judiciary Committee, beginning on Tuesday. He will have to listen to Democrats bray about how the confirmation process has been rigged to push through a nominee somewhere to the right of Attila the Hun, while patiently parrying questions designed to trap or embarrass him.
The Democrat fearmongers on the Senate Judiciary Committee will do everything they can to distort Judge Kavanaugh’s record, caricaturing him as a throwback to the era of Jim Crow and back-alley abortions. Expect Democrats also to whine that they have been unfairly deprived of the opportunity to examine documents from Judge Kavanaugh’s days serving as White House staff secretary during former President George W. Bush’s administration.
Democrats are already complaining about the decision to withhold from Senate Judiciary Committee review 101,921 pages of such documents on the grounds they are protected by constitutional privilege. The decision was announced in a letter sent to the chairman of the Senate Judiciary Committee, Senator Charles Grassley, last Friday. Never mind that more than 400,000 pages of documents were produced (267,834 pages for public release and an additional 147,250 pages produced for the committee’s use on a confidential basis), after an exhaustive review by representatives designated by former President George W. Bush of all emails sent or received by Judge Kavanaugh during his time in the White House Counsel’s Office and of all of the documents contained within his office files from that same time period. Never mind that more than 300 of Judge Kavanaugh’s opinions and law review articles have long been available for all senators to review and that Judge Kavanaugh himself submitted 6,168 pages of material as part of his Senate Judiciary Committee questionnaire. The Democrats, who already have announced their immutable opposition to Judge Kavanaugh’s confirmation, have voracious appetites for ever more materials in a foolhardy attempt to find an elusive “smoking gun” to use against him.
Senate Minority Leader Chuck Schumer called the Trump administration’s decision to withhold the privileged Kavanaugh documents a “Friday night document massacre.” He added that “President Trump’s decision to step in at the last moment and hide 100,000 pages of Judge Kavanaugh’s records from the American public is not only unprecedented in the history of Supreme Court nominations, it has all the makings of a cover up.” Senator Schumer conveniently forgets how he defended the confirmation hearings of Justice Ruth Ginsburg, who ducked some questions because she believed it would be injudicious to opine on specific matters that might come before her as a sitting justice. Senator Schumer said that “Justice Ginsburg had spent 13 years on the D.C. Court of Appeals [U.S. Court of Appeals for the D.C. Circuit], written 305 opinions, and penned at least 65 substantive articles. These were enough to provide any Senator with patience and a pair of reading glass ample evidence of her legal thinking.” The same should go for Judge Kavanaugh, who has spent more than 12 years on the U.S. Court of Appeals for the D.C. Circuit and clerked for the justice he is replacing, Anthony Kennedy.
Ignoring the standard set by Justice Ginsburg in responding to questions during her confirmation hearing, the Democrat demagogues will try to pressure Judge Kavanaugh to answer whether he would vote to overturn Roe v. Wade. They will object strenuously to a response from Judge Kavanaugh that he will respect “settled law.” They will protest his refusal, consistent with the Ginsburg standard, to offer any “forecasts” or “hints” (Justice Ginsburg’s words) as to how he would rule on any specific cases. Justice Ginsburg did not invent this standard herself. When President Lincoln nominated Salmon P. Chase to the Supreme Court, he is reported to have said, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.”
Elena Kagan followed the Ginsburg standard during her own confirmation hearing. “I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight,” she said. “The application of Roe to future cases, and even its continued validity, are issues likely to come before the Court in the future.” Yet if Judge Kavanaugh takes the same approach, Democrats will cry foul. Evidently, what’s good for the goose isn’t good for the gander, as far as Democrats are concerned.
Democrats will also try to cast Judge Kavanaugh as hopelessly beholden to President Trump. Senator Schumer charged, without a shred of evidence, that the president knows “Kavanaugh will be a barrier to preventing” the Mueller investigation from successfully subpoenaing him. Democrats want Judge Kavanaugh to promise to recuse himself from any Supreme Court case related to the Mueller investigation, which is absurd on its face. They have also called for delaying the Judiciary Committee hearings in view of the guilty plea by President Trump’s former personal attorney Michael Cohen, in which Cohen appeared to implicate the president as a co-conspirator in alleged violations of campaign finance laws. These objections and delay tactics are all smokescreens designed to throw groundless roadblocks in the way of confirming Judge Kavanaugh, whom President Trump duly nominated in the proper exercise of his constitutional authority.
The fake news media is in overdrive to help Senate Judiciary Committee Democrats turn Judge Kavanaugh’s confirmation hearing into melodramatic theater. The New York Times editorial board, for example, accused Republicans of “attempting to weaponize the court itself as an instrument of partisan domination” in an editorial published this past weekend entitled “The Supreme Court Confirmation Charade.” That is precisely what Democrats have tried to do ever since they torpedoed the Bork nomination, and which they are continuing to do today with their outrageous attacks on Judge Kavanaugh’s character and record. Hopefully, the Times editorial will be right in one respect when it predicted, in fatalistic tones, that “[I]n the absence of a direct meteor strike, Brett Kavanaugh is nearly certain to be the next associate justice of the Supreme Court of the United States.”