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Washington's Latest New Normal: High Court Nominees Stop Playing Nice

Sep 28, 2018
Originally published on September 28, 2018 6:15 am

Judge Brett Kavanaugh may take a lifetime seat on the Supreme Court as early as next week, but only after shattering a rule about the confirmation process that had been set in stone for decades.

It was the rule that said you stood by your judicial record but held on tight to your judicial temperament. It was understood you had a party affiliation, but it shouldn't be worn on your sleeve. And above all, you were not to antagonize anyone.

You could call this the latest in a list of Capitol Hill norms to be lost in the era of President Trump.

Kavanaugh broke the pattern in defending his nomination against a charge by Christine Blasey Ford, who said he had sexually assaulted her when both were teenagers 36 years ago.

While denying the charge, Kavanaugh was loath to attack Ford herself after her morning of earnest and vivid testimony. Instead, Kavanaugh expressed sympathy for her. She's a victim, he said, and so was he. Victims of "a frenzy on the left" that had betrayed her desire for confidentiality and put his family at risk.

"This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election," the nominee said from a written statement.

Repeated references to activists and advocates on a "search and destroy" mission made it clear he considered them all to be enemies and fighting dirty. His exchanges with Democratic senators quickly deteriorated into bickering and recrimination. When one asked if he had blackouts from drinking, he shot back: "No, have you?"

With much of the national audience having just responded to Ford's performance on TV, something like this scorched-earth defense may have been Kavanaugh's only chance. It may have been the one way to prevent Republican defections. It may have been the one way to keep the White House on his side.

So the long-term effects that such a confirmation conflagration could have for Kavanaugh on the court — or for the court itself — were subordinated.

The process was a "national disgrace," Kavanaugh said, despite the fact the process was being run by the majority party, the party of the president — the party of Kavanaugh himself.

And that may have been part of the problem, or perhaps the root of the problem. Kavanaugh clearly believed he was being targeted for torture by Democrats resentful of his record not as a judge, but as a lawyer for the GOP — and not just any party lawyer, but a key player at moments of maximum sensitivity still raw in the memory.

That was behind his remark about the "revenge of the Clintons." He was not just referring to Democratic resentment of Hillary Clinton's loss in 2016, but also the bitterness from President Bill Clinton's impeachment in 1998. Kavanaugh worked for independent counsel Kenneth Starr, whose wide-ranging probe of the president exposed an affair with a White House intern named Monica Lewinsky. As a young lawyer on Starr's team, Kavanaugh pushed for explicit inquiries about sex acts and urged Starr to author a tough report.

Shortly thereafter, Kavanaugh worked for George W. Bush's campaign in the disputed Florida recount of 2000 and later as his White House staff secretary, reviewing a variety of sensitive issues and documents — another source of friction with Judiciary Committee Democrats who wanted to see these archival items.

As a result, Kavanaugh's first judicial appointment by Bush in 2003 was held up for three years and needed special interparty negotiations to be approved in 2006. It's just possible the memory of all that has not left Kavanaugh's hippocampus, either.

All judges have some political affiliation, of course, and always have had. But it had been something to play down — something to all but deny. In the not so distant past, nearly every nominee actively sought bipartisan love.

When asked about contentious cases, such as the landmark abortion case of Roe v. Wade, nominees were expected to decline to indicate which way they would rule. They were to do so even if they had given strong indications of their view of the case in the past. And yes, even if those very indications were a big part of the reason they got nominated to the Supreme Court.

They were to be judges first and last, and judicial to the bone. The preference was for veterans of law schools and appeals courts who had never run for office or been too sullied by those who had.

But in the new age of judicial confirmation by simple majority, immune from filibuster, reaching across the aisle is no longer imperative; it's optional. Support from the minority party is nice, but no longer required.

Last year, Republican Senate Majority Leader Mitch McConnell banned filibusters on appointments for the Supreme Court, extending the previous rule for presidential appointments established by Democrats in 2013. That made it possible to confirm Trump's first high court pick, Neil Gorsuch, with just a simple majority.

So now, and presumably henceforward, there will be far less incentive to seek help from across the aisle — either as a nominee or as a Senate leader.

And if this week's spectacle is a guide, the ease of the Gorsuch confirmation will be the exception.

That had been the general presumption for 30 years, and it worked for nominees in both parties — with two egregious exceptions. The ghosts of both those exceptions were present in the hearing room this week.

The first ghost was totally expected. It dates to 1991 and the hearings for Clarence Thomas. Thomas was pulled back from the brink of confirmation after charges of sexual harassment were lodged by his former subordinate, Anita Hill. The parallels between that confrontation and Ford's charge of sexual assault were widely noted and revisited in the media.

Thomas fought back not only by denying Hill's stories, but by accusing the committee (composed of all white males) of a "high-tech lynching." Although both Hill and Thomas are African-Americans, the race issue helped him hold enough Democrats to be confirmed.

The other ghost that appeared was less immediately relevant, but Kavanaugh's strategy conjured its spirit before the day was out. This second apparition dates from 1987, when Ronald Reagan used his third Supreme Court vacancy to appoint appellate court Judge Robert Bork.

Reagan's first two picks installed the court's first woman (Sandra Day O'Connor) and the man who would become its conservative anchor (Antonin Scalia). Both were confirmed by the Senate unanimously.

But Bork was a different kind of conservative. An originalist like Scalia, he was more openly combative in handling contentious issues. His cerebral performance in his hearings delighted conservatives but dismayed the Democrats, who had taken majority control of the Senate the previous year.

Bork also had a far more political history than most court candidates. As the U.S. solicitor general in the Justice Department of President Richard Nixon, Bork played a pivotal part in the Watergate scandal saga. When Nixon's attorney general and deputy attorney general both refused to fire the independent counsel investigating Nixon's re-election campaign in the fall of 1973, Bork stepped in as acting attorney general and did the job.

Although he did not remain long in the attorney general role, the memory of Bork's willingness to serve the embattled Nixon was, for many, a lingering stain.

Edward Kennedy and other liberals on the committee hounded Bork in committee on civil rights, affirmative action, abortion and women's rights. Their media campaign demonized him as no Supreme Court campaign had before. He lost in committee and made an emotional, highly partisan appeal for reconsideration on the Senate floor. But there, too, he lost.

Since then, presidents in both parties have sought nominees who, whatever their ideology, presented a less partisan profile. Even Gorsuch fit that description. And for a time it appeared that Kavanaugh might manage his own version of it.

But in the end, the Kavanaugh who emerged late Thursday was more like the indignant Clarence Thomas and the unbowed Robert Bork. In the new environment, that may get him confirmed. And if he takes that seat on the high court, it may herald a new and difficult day for that institution as well as for the Senate.

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