If you tuned in to the Senate confirmation hearings for Supreme Court nominee Brett Kavanaugh hoping to see serious discussions about judicial philosophy, you were likely disappointed. Those moments were few and far between.
If, on the other hand, you were looking for political stunts, you might have been satisfied. But let’s be clear: In a few short weeks, Brett Kavanaugh will be an associate justice of the U.S. Supreme Court.
Partisan games do not change the fact that Brett Kavanaugh is a fair-minded jurist who is perhaps the most well-qualified nominee in a generation.
He already sits on the second-most influential court in the nation, and he has published more than 300 opinions. He is a graduate of Yale Law School and is a lecturer at Harvard. Kavanaugh clerked for three federal judges—including the man he seeks to replace on the Supreme Court, Justice Anthony Kennedy — and he worked for the both the Solicitor General and the White House Counsel’s Office. The American Bar Association gave Kavanaugh a unanimous rating of “well qualified,” and specifically highlighted his integrity and outstanding character.
It cannot be seriously doubted that Judge Kavanaugh meets the criteria that the Senate has traditionally considered when evaluating nominees.
Unfortunately, for much of the Senate’s hearings, Judge Kavanaugh’s experience took a backseat to choreographed outrage. It wasn’t always this way. When Ruth Bader Ginsburg was nominated by Bill Clinton, everyone knew she would be among the Supreme Court’s most liberal members. But in objective terms, she was qualified, and the Senate confirmed her by a 96-3 margin despite Republicans’ political misgivings.
Only eight years ago, Elena Kagan passed the Senate with nearly two-thirds of the vote. With 41 members, the Republicans could have mounted a filibuster under the Senate’s rules. Republican Whip Jon Kyl said at the time that the filibuster “should be relegated to extreme circumstances, and I don’t think Elena Kagan represents that.”
Not so for Brett Kavanaugh. Last week, his nomination became the epicenter of partisan political gamesmanship.
How ugly was it? One of Kavanaugh’s former law clerks was falsely accused of flashing a white supremacist signal on television. A Senator made a show of releasing supposedly “confidential documents” against Senate rules, comparing himself to Spartacus and implying that Judge Kavanaugh supports racial profiling. Of course, as we all know by now, those documents were already cleared for public release and they actually demonstrated that Kavanaugh supports race-neutral policies.
Another Senator put out a video purporting to show that Kavanaugh is “going after birth control.” Left-leaning groups and some media outlets ran with it, but once again, the narrative was false. The video was edited to exclude a key portion of Kavanaugh’s testimony, which made it clear that he was describing a litigant’s position in a case, not his own personal views. A Democrat super-Pac has even filed a frivolous complaint accusing Kavanaugh of perjury.
These tactics appear to be less about Judge Kavanaugh than about the midterm elections and the Democrat primary for President in 2020. They were designed to win favor with the party’s base, which is drifting further left and is not interested in Kavanaugh’s qualifications. These stunts even formed the basis for fundraising emails that were sent contemporaneously with the hearings.
To their credit, some Left-leaning lawyers put professionalism ahead of partisan politics. Lisa Blatt—a self-described “liberal Democrat and feminist” who has argued 35 cases before the Supreme Court—introduced Kavanaugh to the Judiciary Committee.
Blatt was blunt in her assessment: “By any objective measure, Judge Kavanaugh is clearly qualified to serve on the Supreme Court.” She described Kavanaugh’s opinions as “thoughtful and fair,” and his temperament and integrity as “flawless.”
Yale law professor Akhil Amar described Kavanaugh as “studious and open-minded” and predicted that he will be an “anti-polarizing force on the Court.” The people who know Judge Kavanaugh—and who aren’t running for President—seem to think he’s a fair and capable jurist.
Democrat Senators have a choice. They can join responsible liberals like Lisa Blatt and Akhil Amar in recognizing that Brett Kavanaugh is well qualified, thoughtful, and fair. Alternatively, they can continue to make this process more partisan and more divisive than it should be. But if they choose the latter, it will be for naught.
Like Cervantes’ Don Quixote, they are tilting at windmills. Brett Kavanaugh will soon be on the Supreme Court. Stunts and political theater will not change that fact.
Larry Obhof, a Republican, is the president of the state Senate in Ohio.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
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