The Approaching Appointment of Brett Kavanaugh

As smoke clears from the fiery battleground that was the Brett Kavanaugh confirmation hearings, the Supreme Court nominee stands solid for appointment. After he fended off intense questioning during the last two 13-hour-long days of the hearings, the image Kavanaugh’s supporters have presented of an experienced and erudite jurist prevailed over that of a far-right Trump puppet. In one of the most controversial and heated Supreme Court nomination processes that has ever occurred, Kavanaugh managed to dodge vilifying challenges and present himself as an independent judge, loyal to the Constitution, destined for the Court with the help of a Republican-controlled Senate.

As Sheryl Gay Stolberg details in the New York Times article “Two Portraits of Kavanaugh As Senate Hearings Open,” two conceptions have circulated across the country. One, as Republicans portray him: an “experienced, independent-minded jurist with a sparkling résumé” and “an advocate and mentor for women in the judiciary.” The other, as Democrats painted: a “far-right extremist who would roll back abortion rights, deny health coverage to people with pre-existing conditions,” and “protect President Trump from the threat of subpoena.” The image Kavanaugh conveyed during his Senate hearings would have substantial impact on his prospects for confirmation.

Democrats pressed Kavanaugh on his views on abortion rights and same-sex marriage, his remarks on Roe v. Wade, records from the George W. Bush White House, loyalty to President Trump, and the limits of executive power. In the Wall Street Journal article, Kavanaugh Weathers Raucous Hearings,” Jess Bravin and Byron Tau explain how the nominee maintained a solid stance against his opposition. Kavanaugh deflected questions that tried to extort his views on reproductive freedom and marriage rights. When questions came up about a comment on Roe v. Wade, the landmark Supreme Court case which declared a constitutional right to abortion, he emphasized the need to follow legal procedure, including precedent, over personal belief. In March 2003, Kavanaugh, who was then working at the White House, sent an email in which he questioned whether “all legal scholars” viewed Roe’s status as “settled law.” In the hearings, he clarified that this email simply acknowledged that, as with any decision, the Supreme Court can always overrule it.

Debate continues over the paper record from Kavanaugh’s time in the Bush administration. Democratic senators focused particularly on emails he sent involving racial preferences and profiling. Although hundreds of thousands of pages on Kavanaugh’s tenure in the Bush administration are now publicly available, some papers remain “committee confidential.” Republicans say that restricting access to sensitive documents from the public is commonplace in Supreme Court nominations. Democrats argue that there is no good reason senators and their staffs hold exclusive access to these other documents.

Democrats voiced further concern about Kavanaugh’s future objectivity in cases involving President Trump. Also, the nominee’s expressed support, on the federal appellate court, for executive power invited interrogation about his loyalties. The nominee showcased his twelve-year record as evidence of his commitment to an independent judiciary and democratic institutions in general. He firmly countered doubts by stressing that his “loyalty is to the Constitution” and that he is “an independent judge.”

The 51-49 Republican Senate majority almost guarantees Kavanaugh’s confirmation. Democrats, aware of the nearly certain result, labored with their best course of action--delaying the confirmation process while trying to tie him to defaming potential embarrassments. Kavanaugh’s mission in his hearings was never about convincing the opposition of his personal merit, since the Democratic leadership would never embrace a Trump-nominated justice. It was about preventing the Democrats from delaying the confirmation and complicating an otherwise-smooth procedure.

Kavanaugh’s prospects for confirmation would disintegrate if all Democrats opposed him and two Republicans joined them. But that just won’t happen. Republican Senators Lisa Murkowski and Susan Collins, stout abortion-rights advocates, seem to favor Kavanaugh and to hold him in high regard. In addition, some Democrats may even cross the aisle for him. These Democrats face re-election this year in states President Trump won by wide margins in 2016. If any delay or major problem for Kavanaugh’s confirmation does arise, it will emerge from the enormous volume of papers from his service in the Bush White House.

It is almost certain that Brett Kavanaugh will become the next Supreme Court justice. He already seems to have the entire Republican majority at his back. Now, all he needs to do is ensure that he loses none of this support, by guaranteeing that no major concern arises about his professional or ethical qualifications, as Democratic senators tried to create in the hearings. Despite aggressive challenges against him, Kavanaugh maintained a steadfast resolve to present himself as a highly qualified, independent, and honorable constitutionalist worthy of confirmation.