San Francisco Chronicle

Stress test for judiciary

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If party alliances hold, Supreme Court nominee Brett Kavanaugh will not need a single Democratic vote to be confirmed as the nation’s 114th Supreme Court justice. His confirmati­on hearings, which begin Tuesday, will provide yet another measure of how hopelessly polarized Washington has become.

If a commitment to judicial independen­ce transcende­d partisan gamesmansh­ip, Judge Merrick Garland, instead of Neil Gorsuch, would be sitting on the Supreme Court, and the vacancy created by the departure of Justice Anthony Kennedy would not be nearly so consequent­ial to the ideologica­l balance of the high court. But Senate Republican­s refused to even allow a hearing on Garland’s nomination in the last year of Barack Obama’s presidency.

If fidelity to transparen­cy and an honest vetting of lifetime appointmen­ts transcende­d political expedience, President Trump would not be withholdin­g more than 100,000 documents from Kavanaugh’s tenure in the George W. Bush White House.

So here we are, with the GOP-controlled Senate getting ready to fast-track the replacemen­t of Kennedy — a conservati­ve willing to make bold departures from his otherwise like-minded brethren on issues such as abortion rights, affirmativ­e action and marriage equality — with a judge whose history suggests a more doctrinair­e view of the law.

Questions about those matters, particular­ly the 1973 Roe vs. Wade ruling on abortion, are certain to pervade this week’s hearings. Just as predictabl­e will be Kavanaugh’s wellrehear­sed intention to duck them, citing an unwillingn­ess to telegraph judgments on matters that might come before the court. He must be pressed anyway, with two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, having made plain they will not vote for a justice who would overturn Roe.

Kavanaugh has argued that a president should be insulated from civil or criminal action while in office. Former prosecutor Sen. Kamala Harris, DCalif., recently tweeted, “The president is an unindicted co-conspirato­r in federal crimes and he has nominated someone to the Supreme Court who believes a sitting president should never be indicted.”

Harris and Sen. Dianne Feinstein, D-Calif., both serve on the Judiciary Committee. Their work is cut out for them this week.

 ?? J. Scott Applewhite / Associated Press ?? Judge Brett Kavanaugh faces confirmati­on hearings in the Senate Judiciary Committee.
J. Scott Applewhite / Associated Press Judge Brett Kavanaugh faces confirmati­on hearings in the Senate Judiciary Committee.

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