Thoughts on the Kavanaugh Confirmation Hearings

What’s at stake with the Brett Kavanaugh hearings?

Even before the allegations of Kavanaugh’s sexual misconduct his hearings were important politically and legally.  Because of the political polarization and partisanship in Washington, Congress and the president have been unable to get a lot done, thereby forcing the US Supreme Court to get involved in resolving major political controversies of the day ranging from the rights of same-sex couples to marry, the constitutionality of Obamacare (Health care), reproductive rights, and a host of other issues.  The federal courts have become an alternative forum for groups to press their political issues.

For the last few years the Supreme Court has been a slightly right of center institution, divided politically 4-1-4.  There are four reliably conservative Justice appointed by Republican presidents, and four reliably more liberal Justices appointed by Democrat presidents.  Both sides vote nearly as a bloc.  In between has been Justice Anthony Kennedy, who has been a swing justice.  In the 30 years plus on the Court he has been perhaps the single most influential Justice, often casting the critical fifth vote deciding cases.  Analysis suggests that over his career he has been in the majority nearly 90% of the time.  In effect, as Kennedy votes so goes the Supreme Court.

Kennedy announced his retirement a few months ago.  The US Constitution says the president shall have the power to nominate members to the Supreme and lower federal courts, subject to the advice and consent (approval or confirmation) by the Senate.  What we are in the middle of are the confirmation hearings.

So who is Kavanaugh?
Brett Kavanaugh is currently a federal court of appeals judge and he served in the Bush administration.  An analysis of his court opinions suggest he is a conservative legally and were he confirmed to replace Kennedy, he might move the Supreme Court in a more conservative direction with a firm five votes.

But are Justices really political? 
The best political science research of voting behavior suggests that ideology increasingly matters.  The best predictor of how a Justice will vote is to look at the appointing president.  At one time presidents were less likely to consider an appointee’s views where nominating them to serve on the Court, but those days are gone.  The Robert Bork failed confirmation in 1986 changed that.  Now, given that Supreme Court justices can serve for life and that Washington is deadlocked, potentially the most significant legacy of a president is who he places on the Court.  Were Kavanaugh confirmed, Trump will now have two appointments to the Supreme Court and the impact will potentially be important.

Do the Democrats realize all this?
Yes.  They understand this and how legally and politically important this appointment is and were ready to fight the nomination originally.  But there were two other factors that made this appointment so contentious.  First, Democrats are mad that when Justice Scalia died while Obama was president the Senate would not schedule a vote on Obama’s nominee Merrick Garland.  This gave Trump an opportunity to fill the vacancy with Gorsuch.  Democrats felt that the Republicans did not play fair and there is some payback here.  But also, the 2018 elections are in the background here, and the original Kavanaugh hearings occurred under the light of how they would motivate the Republican and Democrat political bases.  My point is that the stakes were high even before the allegations of sexual harassment, but it appeared that the Republicans had the votes to confirm Kavanaugh.  Probably all of the Republicans were going to confirm, and perhaps two or three Democrats would have also voted for him.  These were Democrats up for election this year in states that Trump won as president.

How did the sexual harassment allegations change things?
First, it is too soon to tell in terms of a final vote, but it now changed the hearing into even more of a political issue, as well as a question of what it means to be fit to be a justice. 
By that, Republicans already had a gender problem with evidence suggesting females voters were mobilized and turning against them in the 2018 elections.  The is the “me too” movement growing out of reaction to comments by Trump and accusations of sexual misconduct by famous people ranging from Bill Cosby, Harvey Weinstein, and Senator Al Franken.  Women rightly are upset by sexual harassment and misconduct by men and want action taken.
The accusations against Kavanaugh are significant, especially how that there are multiple  accusations.  Republicans are in a bind.  They want to confirm Kavanaugh and move the Court to the right, and this is something of big interest to the Republican political base, especially the evangelical Christians.  However, public opinion is suggesting Kavanaugh is unpopular and women especially oppose him.  Pushing Kavanaugh runs huge political risk that women will vote for Democrats and flip both or either the House or Senate and put them in charge.  The issue or question is it worth the political risk, do you push for Kavanaugh and move the court to the right and take a chance that might put your party out of office?  Also, if Republicans lose control of one or both houses of Congress, this has big implications for Donald Trump in terms of legal investigations against him.

What can we expect in the hearings?
In addition to everything I have already said, hanging over this hearing is the image of the 1991 Clarence Thomas Supreme Court confirmations hearings when the Senate heard allegations  from Anita Hill regarding sexual harassment by Thomas.  While Thomas was confirmed, it left a big legacy. It mobilized female candidates to win big in 1992.  But it also created an image of a bunch of old white men who were out of touch not treating sexual harassment seriously.  The Republicans want to avoid these problems this time.  They want to protect Kavanaugh and make it look like there is a fair hearing while also not upsetting women.  That is why they have hired a female prosecutor to question Dr. Ford.

Will this solve the optics or image problem?
It is not clear but doubtful.  First, prosecutors often act like prosecutors and this is an issue here. Will the prosecutor hired by the Republicans put Dr. Ford on trial and grill her hard.  It could blow up in their face.  Second, how will she or the Republicans treat Kavanaugh and how will he respond?  In effect, who will be perceived to be put on trial.
I think the Republicans have already made major mistakes in this hearing.  They announced no FBI hearing to review the allegations of Ford and others.  A Senate hearing is a horrible place to do this type of fact-finding.  Second, they seem unwilling to allow other accusers to testify, or at least are not giving them sufficient time to stte their case.  Third, the Senate has scheduled a vote for Friday and that vote, along with comments by many Republicans, suggests that they have already made up their mind and the testimony, whatever it will be, will not change their minds.

Could the hearing end the Kavanaugh candidacy?
Maybe.  There are two big differences from Anita Hill.  First, 27 years have passed and American culture has possibly changed.  It is possible sexual misconduct allegations now mean something that they did not back then.  Second, Anita Hill and Clarence Thomas were Black, Kavanaugh, Ford, and the other accusers are white.  Race is not a factor here and it may be harder to discount claims by white women.

In addition, female Republican Senators Collins and Murkowski seem troubled by the Kavanaugh accusations, and if they flip Kavanaugh might lose a final Senate vote if there is an otherwise straight party-line vote.  The sexual misconduct allegations may give enough political cover to some of the Democrats up for re-election in Trump states to vote against Kavanaugh.

Before a floor vote, the Senate Judiciary committee must vote.  This is Friday.  In theory the committee could vote not to confirm and kill the nomination there.  Another possibility is a vote to confirm and send to the full Senate, a third is a vote with no recommendation and send to the full senate.  In 1991, the Senate Judiciary sent the Thomas nomination to the full committee without a recommendation.  Barring a really bad hearing, I doubt the Republicans will let the Kavanaugh appointment die in committee.

Final thoughts?

There is not fixed answer regarding what it means to be qualified to be on the Court.  Aside from all the political issues, the tough question is where and how do these allegations against Kavanaugh, even if true, fit into determining whether he is qualified to sit on the Supreme Court.  Legal skills and judgment obviously should be factors, but how one assesses character is difficult, and this is a major issue here too.