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4 Takeaways From The Second Day Of Brett Kavanaugh’s SCOTUS Hearings


The second day of Judge Brett Kavanaugh’s Supreme Court confirmation hearings were better the first in one respect: We heard more from the candidate than from the senators. In 10-plus hours of testimony, we learned more about the man who will likely become the next Supreme Court justice, as well as a little about the senators questioning him.

1. Protesters Are Still Obnoxious

Tuesday’s arrests of the protesters in the judiciary committee hearing room did not discourage the next patch of loudmouths from throwing their temper tantrums Wednesday. Even the Democratic senators seemed annoyed at the audience antics and at one point joined their Republican colleagues in expressing their appreciation for the police on the scene who were handling crowd control and shuffling the screamers out of the room. The contrast with Kavanaugh’s deportment was, again, striking.

The hysterics also should settle once and for all the question of whether cameras should be allowed in Supreme Court arguments. If this many wailing narcissists (the protesters, I mean, not the senators) will risk arrest to have their muffled voices heard on C-SPAN3, how many more would pack into oral arguments over an important issue before the high court? Every session would turn into a circus for clowns from the left and right alike.

2. They’re Running out of Things to Say

Each senator was granted thirty minutes to question the nominee, and some of them picked bewildering topics on which to spend their time. Democratic Sens. Patrick Leahy and Dick Durbin used the lion’s share of their time to question Kavanaugh about how Senate Democrats were hacked in 2001 by Republican operatives. The hack involved the Judiciary Committee Democrats and gave people in the Bush White House access to discussions among senators who might oppose the president’s nominees.

That was a serious problem, but also one that was exposed more than a decade ago. Kavanaugh was a member of the George w. Bush White House staff then, but when questioned about it in 2004 and 2006, denied knowing anything about it. Since then, nothing has emerged that would contradict his testimony, but Durbin and especially Leahy hammered away at the nominee anyway. The result of which was: nothing.

Democratic Sen. Sheldon Whitehouse resumed his eccentric conspiracy theories of Tuesday, giving condescending diatribes to the nominee about areas of law and politics over which a judge has no control, leaving his only possible questions to Kavanaugh roughly the equivalent of, “Isn’t that right?” Democratic Sen. Richard Blumenthal joined in, too—his thirty minutes mostly repeated points other senators had made—saying that Kavanaugh’s dissent in Garza v. Hargan contained coded language designed to please the Trump administration. Kavanaugh did what most people do when accosted on the bus by someone who tells you he was abducted by aliens: he nodded and promised Whitehouse he would give the matter some consideration.

Others, including Durbin and Democratic Sen. Cory Booker, returned to the issue of the number of documents produced, often drawing in committee chairman Chuck Grassley to dispute a point. Democratic Sen. Amy Klobuchar asked Kavanaugh if he would demand that more documents be released—he said it wasn’t his call. Since this was the issue they spent most of Tuesday yelling about without result, it may be that they know they are out of options. Since they can’t stop Kavanaugh, they may just want to muddy the nominee as much as possible.

3. The Least Dangerous Branch

Republican Sen. Mike Lee asked Kavanaugh which of the Federalist Papers was his favorite, which the judge compared to asking which of his children he liked best. He eventually answered, listing about a dozen, but Kavanaugh and Lee talked the most about Federalist 78, which Alexander Hamilton wrote on the subject of the judiciary. In the most famous passage of that article, Hamilton explained why the judiciary is “the least dangerous” branch of government:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This distinction between will and judgment recurred throughout the day. Lee asked the difference between the two, and Kavanaugh explained that will in this instance represents a choice. The executive and legislature—the political branches—are required to abide by the Constitution, but within that limit have a wide latitude to enact and enforce laws they believe to be correct. Their will is a political will, based on their own opinions and those of the voters. Each law is a choice, one of many they could have made.

The courts, on the other hand, have only judgment. They do not get a say in how the law is written, but must only, to the best of their ability, read the law and apply it. If a law violates the Constitution, they must strike it down; if not, they must uphold it. That is not always a simple task, but it is clearly one that is different from that of Congress or the president.

Kavanaugh’s words on this point paint him as a sincere believer in the distinction, but across our political scene it is one that is honored less often than it once was. Many politicians—and many voters—find the distinction burdensome, and want judges who give them what they want, regardless of the legality or the consequences. Some believe that so deeply that they can hardly imagine that anyone still holds to the old distinction, and suppose all this talk of neutrality and judgment must be a ruse.

4. Law Versus Policy

Many junior members of the committee showed their Resistance credentials by being openly contemptuous of Kavanaugh and his protestations of impartiality and precedent. Blumenthal, Democratic Sen. Marie Hirono, and Harris, having listened to answers to questions by their more senior colleagues on the subject, could barely conceal their distaste for Kavanaugh’s claims to be a judge’s judge, siding not with plaintiff or defendant but with the law. Hirono also accused him, without evidence, of having known about Judge Alex Kozinski’s sexual misconduct and done nothing, which Kavanaugh denied.

But even more tenured Democrats appeared to doubt him on the issue of deference to precedent. Durbin, Blumenthal, and Feinstein described cases in which Kavanaugh had ruled and tried to build up sympathy for the losing party. Whether it was for show or a truly held belief, they did not seem to be able to distinguish between a person they like and a person who was on the right side of the law.

In a case about slaughterhouse employees unionizing, Durbin discussed how tough that sort of work is. He’s right, but that has no bearing on the narrow legal point at issue in the case. Blumenthal talked about all of the health problems that once precluded people from getting health insurance. And poor health is a tragedy, but has little to do with what Kavanagh was asked about, which was a case about prosecutorial discretion. Feinstein used a similar tactic in discussing the Garza abortion case, though the conditions the girl was fleeing in her home country didn’t matter to the application of the law on abortion.

None of these efforts proved anything but that Kavanaugh works toward fair verdicts, very often attracting the support of Democratic-nominating colleagues on the D.C. Circuit. (Klobuchar’s discussion of antitrust cases came the closest to showing that Kavanaugh might have a blind spot for corporate mergers, but the calm manner in which she delivered the questions guarantees that the hot air from Booker, Harris, Blumenthal, and Whitehouse will grab the headlines instead.)

This ties in with Lee and Kavanaugh’s Federalist 78 discussion, and shows how far from the Founders’ ideals many in Washington have fallen. Not only do they not believe judges suppress their personal policy choices, they don’t even see why they should. The divided government ideal has been replaced with means justify the ends power politics. We should hope that Kavanaugh is sincere in his beliefs about separating will from judgment, not only because it would make him continue to be a good judge, but also because it would show the skeptics that an impartial judiciary is still possible.