September 5, 2018
The second day of Supreme Court nominee Brett Kavanaugh’s confirmation hearing thankfully lacked the drama provided by yesterday’s orchestrated and extremely rude Democratic opposition. That didn’t keep the Democrats for grousing occasionally about “missing documents,” or periodic demonstrators from punctuating the professional atmosphere of the proceeding with shouts of “We’re not going back!” But over twelve hours of a marathon hearing, Judge Kavanaugh remained placid and unruffled, an island of calm in a sea of political foam.
There were many highlights from the day’s hearing. For lack of time and space, here are just a few:
Judge Kavanaugh on textualism: “The words of the Constitution matter….” “Start there, and pay attention to the words of the Constitution.”
Senator John Kennedy of Louisiana (R): “Are you willing to overturn precedent?”
In response, Judge Kavanaugh schooled the committee on the Court’s precedent on stare decisis and the basis for overruling precedent.
Senator Ben Sasse (R-NE): “Are you going to be the swing vote on the Court?”
Judge Kavanaugh: “I’ll be my own man” – just as Justice Anthony Kennedy was.
Senator Cory Booker (D-NJ), who had alleged that anyone who supports Kavanaugh’s nomination is “complicit in evil,” chided Kavanaugh for unfairness to minorities while refusing to show him an email he claimed to be cross-examining him on. (Booker apparently thought the term “naked racial set-asides” in a long-ago email by Kavanaugh, showed racial animus.) Kavanaugh engaged in a long repudiation of Senator Booker’s assertions – how he supports minority law clerks, how he has written on implicit bias, how he held that a single use of the “n-word” could create a “hostile work environment” in violation of employment non-discrimination laws. Ultimately, Booker failed miserably in his attempt to set up a fake racially bigoted Kavanaugh as a straw man.
Senator Mazie Hirono of Hawaii (D) chided Judge Kavanaugh for his opinion in the Garza immigrant abortion case, saying that even if Roe isn’t overturned, there are many ways a Justice Kavanaugh could restrict “a woman’s right to reproductive access.” Apparently, for radical pro-abortionists like Hirono, nothing short of the full embrace of Roe and its progeny will suffice.
Senator Richard Blumenthal (D-CT) charged that Kavanaugh used anti-abortion “coded language” in Garza. In Blumenthal’s world, Kavanaugh’s use of terms like “abortion on demand” and “existing precedent” was a signal to the Federalist Society and the Trump White House that he was willing to overturn Roe v. Wade. Blumenthal appeared unimpressed by Judge Kavanaugh’s reminder that Chief Justice Warren Burger used the phrase “abortion on demand” in his concurrence in Roe for the exact same purpose as Kavanaugh – to stress that Roe was not supposed to be an unbridled right to abortion.
Judge Kavanaugh recalled representing a Jewish group that wanted to build a synagogue but had been stopped by local zoning authorities. In thanks, the group gave Kavanaugh a plaque, which still hangs on his wall, which contains the words of Scripture, “Justice, justice shalt thou pursue.”
Finally, Judge Kavanaugh explained, perhaps better than anyone on a national stage has in memory, how the federal structure of the Constitution, with its check and balances and apportionment of federal-state authority, was designed by the Framers to protect individual liberty. “In check after check after check, the Constitution tilts toward individual liberty.”
We’ll review for you Judge Kavanaugh’s next stanza in this song of individual liberty tomorrow. Thursday will feature a second (“lightning”) round of questions by the committee. The hearing will wrap up Friday with panels of witnesses both for and against Judge Kavanaugh’s nomination.