Page 58 - Time Magazine, Sep. 17, 2018

TheBrief Opener

POLITICS claim that this has been a thorough or transparent pro-
Democrats struggle to cess is downright Orwellian,” said Senator Patrick Leahy,
a Vermont Democrat.
stop Brett Kavanaugh For their part, Republicans say the volume of docu-
ments produced so far is the highest in the history of Su-
By Tessa Berenson preme Court nominations. And they argue that many of
those that remain outstanding contain sensitive informa-
ROVIDING ADVICE AND CONSENT ON SU- tion and were not even authored by Kavanaugh.
preme Court nominations is one of the Sen- The spat over the documents rendered the judge’s own
ate’s solemn duties. But the start of Judge opening statement an afterthought. “A good judge must be
P Brett Kavanaugh’s confirmation hearings on an umpire—a neutral and impartial arbiter who favors no
Sept. 4 was more spectacle than substance. At the outset, litigant or policy,” Kavanaugh said, borrowing a metaphor
all 10 Democrats on the Judiciary Committee carried out from Chief Justice John Roberts’ 2005 hearing. “I don’t
a coordinated plan to stall the proceedings, interrupting decide cases based on personal or policy preferences. I am
repeatedly and demanding a postponement. A chorus not a pro-plaintiff or pro-defendant judge. I am not a pro-
of protesters stood up and yelled from the back of the prosecution or pro-defense judge. I am a pro-law judge.”
room; 70 were arrested on the first day alone. His remarks seemed a deliberate counter to the squabbles
The outbursts on both sides of the dais flowed from preceding them. “The Supreme Court,” Kavanaugh said,
the party’s helplessness. Senate Democrats may believe “must never, never be viewed as a partisan institution.”
Kavanaugh is unfit for the court, but they appear to be But the process of picking Justices has been moving
powerless to stop him. Republicans can push in that direction. For much of the 20th century,
through President Donald Trump’s nominee qualified nominees received broad support from
with a simple majority, as long as their caucus ‘Any claim both parties, regardless of the party of the nomi-
holds together. And there are no signs that the that this nating President. Justice Anthony Kennedy, the
campaign against Kavanaugh has persuaded has been a man Kavanaugh would replace, was confirmed
any GOP Senators to vote against him. “There’s thorough or by a 97-0 vote in 1988. Indeed, some measure
no procedural silver bullet to any of this,” says transparent of bipartisan consensus was required to clear a
a Senate Democratic aide. “The only way to de- 60-vote threshold for confirmation.
feat Brett Kavanaugh is to flip votes.” process is In the ensuing decades, judicial nominations
It’s not that the judge’s opponents haven’t downright have become highly politicized, a development
tried. Democrats spent the summer fighting to Orwellian.’ for which both parties bear some of the blame.
derail Kavanaugh’s nomination. Outside groups SENATOR PATRICK LEAHY, Former Democratic Senate leader Harry Reid
ran television ads. Activists held protests. And Democrat of Vermont began to erode the rules surrounding judicial
Senate Democrats assailed Kavanaugh’s rec- nominations in 2013, when he eliminated the
ord on issues like abortion, health care and ex- filibuster on all presidential nominees except
ecutive power. Kavanaugh, who worked as a those to the Supreme Court. In March 2016, Re-
lawyer in George W. Bush’s White House and publicans took things to a new level when they
as a member of Kenneth Starr’s independent- refused to hold confirmation hearings for Judge
counsel investigation of President Bill Clinton, Merrick Garland, President Obama’s nominee to
was painted as a partisan who would cement fill Justice Antonin Scalia’s Supreme Court seat,
the court’s conservative majority for a genera- because it was Obama’s last year in office.
tion or more. “I don’t have any doubt where he Then Trump won the presidency and nomi-
comes down on these issues,” Illinois Senator nated conservative Judge Neil Gorsuch to fill
Dick Durbin, a member of the Judiciary Com- the seat instead. With Democrats still furious
mittee and the No. 2 Democrat in the Senate, over Garland, Republicans changed Senate rules
tells TIME. “With all due respect, Judge Kava- so they could confirm Gorsuch with a simple
naugh speaks fluent Republican.” majority, further reducing the incentive to find PREVIOUS PAGE: VII FOR TIME; THESE PAGES: LE AHY: GET T Y IMAGES; LIBYA: MAHMUD TURKIA — AF P/GET T Y IMAGES
common ground. “Majorities in the Senate mat-
BUT THE ISSUES weren’t what took center ter more than they ever did before with regard
stage in the first days of Kavanaugh’s grill- to the issue of judicial selection and confirma-
ing. Instead, Democrats fought to gain access tion,” says Leonard Leo of the conservative Fed-
to more documents from his work for Bush. eralist Society, who advises Trump on judicial
After a stint in the White House counsel’s of- selections.
fice, Kavanaugh spent three years as staff sec- Kavanaugh tried to distance himself from the
retary, a key position that oversees the flow of drama. Of federal judges, who serve for life, he
all documents to the President. The vast trove said, “We are independent and immune from
of papers from that role won’t be released be- political or public pressure.” But you wouldn’t
fore Kavanaugh’s confirmation vote. “Any know it from his hearing. 
8 TIME September 17, 2018