How Kavanaugh can go quietly into the night
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.