The Confirmation hearings for Supreme Court nominee Brett Kavanaugh have diverted attention from midterm election campaigns across the country over the last month and been the focus of many a political pundit. While Supreme Court picks often generate substantial media buzz given the importance of highest court in America, this hearing has dialed it up. Though at first, it seems senators from the Republican and Democrat parties have gone through the motions of any other confirmation hearing, the reality has been unprecedented.
On one side, Senate Democrats have been up in arms about a number of factors related to Kavanaugh’s confirmation from his opinions on indicting a sitting president to accusations that he misled Congress during previous confirmation hearings to the DC Court of Appeals.
Outrage on the left has centred on the concealment of the vast majority of Kavanaugh’s public documents from his time working in the Bush White House. The hearings started with a mere 4% of Kavanaugh’s White House record available, with 42,000 documents being given to the committee the night before. This made it impossible for them to be reviewed. ‘We are a whisper, a shell of what this [Senate Judiciary] committee once was’, claimed Senator Dick Durbin (IL) discussing the 100,000 additional documents being held up citing executive privilege. This raised questions not only about what Kavanaugh is hiding but also the deterioration of due process when confirming individuals to such a position.
Republicans on the right point say Kavanaugh has released more documents than any other candidate in history. However, this disregards the fact that he has also withheld more documents than any candidate in history. By contrast, when the Obama administration nominated Elena Kagan to the Court in 2010, executive privilege was not asserted over a single document from her tenure as Associate Counsel to President Bill Clinton. The allowance of this behavior is nothing less than a failure by the Senate to act as an appropriate check on proceedings.
Questions have swirled around whether or not proceedings should halt until all documents have been released. In fact, Democrats have already attempted to issue six subpoenas of documents, all of which have been blocked by Senate Republicans.
Nevertheless, the issue is a non-starter due to the Republican majority. Many establishment Republicans see the confirmation of a conservative judge as a worthy compromise for their support of President Trump despite his deviation from traditional conservative values. Getting Kavanaugh confirmed by the November midterms is number one priority, documents be damned because it would ensure a conservative majority in the court for generations.
The attempt to rush through the nomination before the midterms is a sore spot for Democrats. In March 2016 following the death of Justice Scalia, President Obama nominated the moderate Merrick Garland to fill the seat. However, the Republican-controlled Senate refused to even hold a hearing on his nomination citing the election eight months away. Current claims concerning how essential it is to fill the seat immediately stink of political expediency to Democrats, many of whom see the Garland seat as having been ‘stolen’.
It would be easy for Democrats to slip into hopelessness. As the vote looks to go ahead this coming Thursday, most predict the Republican majority will ensure Kavanaugh’s successful confirmation. However, there are Republicans who have not guaranteed their support including pro-choice Senators Lisa Murkowski (AK) and Susan Collins (ME) as concerns mount over Kavanaugh’s stance on the historic Roe v. Wade that guaranteed abortion rights in 1973. Whilst chances are slim that they will defy the party line, it is essential that voters maintain pressure as well as ensuring red-state Democrats such as Heidi Heitkamp (ND) come out in opposition despite their own political balancing acts.
As November creeps closer, it’s impossible not to look at this through the lens of the Midterms. Whilst this fight is not over, these proceedings are a reminder of how essential it is for Democrats to win back the Senate. Republicans have long campaigned on the issue of Supreme Court nominations. With two liberal justices on the court now over 80, it is essential that Democrats begin to do the same. In Trump’s America, decisions are not being made through debate, reason or law. The Kavanaugh confirmation is just the latest high-profile reminder of what the country has at stake when voters go to the polls.