Orlando Sentinel

How Kavanaugh can go quietly into the night

- By O.H. Eaton Jr.

The Kavanaugh hearings reached a new low in the United States Senate. The proceeding­s were embarrassi­ng to Judge Brett Kavanaugh and to the country. The Republican­s blame the Democrats, but if the shoe were on the other foot, the Republican­s would have stooped at least as low.

This embarrassi­ng spectacle could have, and should have, been avoided. Democracy has been likened to a football field. It works best when the players stay between the 40-yard lines. Too far to the right or left of the 40s, and trouble is inevitable. Laws that are passed outside the 40s tend not to have the strength to endure, and judges who are outside the 40s tend to cause political havoc. And well they should. Judges are “like skunk stink on a hound dog — they tend to linger awhile.” And federal judges linger for a lifetime. So the stakes are always high when a judicial candidate brings right- or leftwing ideology with him as heavy baggage. Judges are supposed to be impartial, intelligen­t and rarely seen, and even more rarely heard. Their work is to apply law to facts in a given case without following a political agenda. So judicial selection is of paramount importance.

The Kavanaugh spectacle could have been avoided if the Senate members had acted like the mature adults James Madison envisioned. Federal judges should be selected on a bipartisan basis, which tends to require them to fall within the 40-yard lines. The fault for the Kavanaugh fiasco falls squarely upon the Republican majority for abolishing the 60-vote requiremen­t to affirm federal judges. Requiring 60 votes in today’s political climate would have precluded Kavanaugh from considerat­ion in the first place. And 60 votes provide a “check” on the majority by the minority which, in bipartisan lingo, is called compromise. Compromise is what democracy is all about.

It is not too late to solve the problem. At best, yesterday’s hearing ruined Kavanaugh politicall­y, and he is forever branded by many as a sex offender. His uncontroll­ed anger and self-righteous indignatio­n did not reveal the judicial temperamen­t one expects from a Supreme Court justice. If confirmed, he will be banished to the same dark corner as Clarence Thomas and will never be recognized as “one of the great justices.”

If the Republican­s cannot muster the will to vote against him, they should consider mustering the two votes needed to reinstate the 60-vote requiremen­t. That would allow Kavanaugh to go quietly back to the D.C. Court of Appeals without requiring Republican senators to affirmativ­ely recognize he is damaged goods. Alas, the hearing yesterday may have been so divisive that even that solution may be out of the question.

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