Stress test for judiciary
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.