Why the rush, Repub­li­cans?

A too-quick con­fir­ma­tion pre­vents a fair as­sess­ment of Mr. Ka­vanaugh.

The Washington Post Sunday - - SUNDAY OPINION -

AS THE Se­nate con­sid­ers his nom­i­na­tion to the Supreme Court, Judge Brett M. Ka­vanaugh has en­coun­tered more tur­bu­lence than many pre­vi­ous nom­i­nees. Some of this is, no doubt, an in­ter­est-group-driven, par­ti­san re­sponse to a GOP pick in a fraught time. But, in at least one re­spect, Repub­li­can ef­forts to rush through Mr. Ka­vanaugh have pre­vented a fair weigh­ing of his nom­i­na­tion. The cir­cum­stances de­mand that Mr. Ka­vanaugh’s con­fir­ma­tion be de­layed — and we are not re­fer­ring to the lat­est al­le­ga­tions from an un­named high school ac­quain­tance of Mr. Ka­vanaugh, the fo­cus of much at­ten­tion this past week.

Democrats and Repub­li­cans typ­i­cally agree on which doc­u­ments se­na­tors and the pub­lic get to re­view be­fore Supreme Court con­fir­ma­tion hear­ings be­gin. In this case, Repub­li­cans charged ahead with no such agree­ment and failed to ask for a huge trove of doc­u­ments re­lat­ing to Mr. Ka­vanaugh’s ten­ure as staff sec­re­tary to Pres­i­dent Ge­orge W. Bush, a job the nom­i­nee said deeply in­formed his judg­ing.

Repub­li­cans ar­gue that the staff sec­re­tary doc­u­ments would not be rel­e­vant. How do they know? They have not seen them. Un­doubt­edly, many, per­haps most, of them would not be turned over. But there is no press­ing rea­son Mr. Ka­vanaugh’s nom­i­na­tion must be con­sid­ered be­fore Repub­li­cans’ ar­ti­fi­cial Oc­to­ber dead­line. A non­par­ti­san en­tity, per­haps the Na­tional Archives, should sort through the staff sec­re­tary doc­u­ments. Vot­ing should be post­poned un­til a fair as­sess­ment of the files has been com­pleted and ger­mane doc­u­ments turned over to the Se­nate.

On Mr. Ka­vanaugh’s mer­its — ac­cord­ing to the record presently avail­able, at least — the nom­i­nee boasts a dis­tin­guished ten­ure as an ap­peals court judge and the con­fi­dence of a va­ri­ety of le­gal lu­mi­nar­ies. In his hear­ings, he rightly en­dorsed United States v. Nixon, which ob­li­gated Pres­i­dent Richard M. Nixon to turn over ev­i­dence to the Water­gate spe­cial coun­sel. He was also quicker to em­brace the land­mark Brown v. Board of Ed­u­ca­tion de­seg­re­ga­tion de­ci­sion than was Jus­tice Neil M. Gor­such dur­ing his con­fir­ma­tion. But Mr. Ka­vanaugh was more re­luc­tant to crit­i­cize Pres­i­dent Trump for politi­ciz­ing the Jus­tice De­part­ment. Of­fer­ing mostly eva­sive an­swers, his hear­ing per­for­mance was about as dis­ap­point­ing as that of past suc­cess­ful nom­i­nees.

Mr. Ka­vanaugh bears a spe­cial bur­den, though. He wrote an ar­ti­cle a decade ago propos­ing that pres­i­dents should not be in­ves­ti­gated while in of­fice. Mr. Trump fumes con­stantly about the in­ves­ti­ga­tion of spe­cial coun­sel Robert S. Mueller III. If Mr. Ka­vanaugh be­comes the fifth vote in a Mueller v. Trump case, many Amer­i­cans would ques­tion whether the pres­i­dent picked him for the ex­press pur­pose of pro­tect­ing the White House from a valid crim­i­nal in­ves­ti­ga­tion, and whether Mr. Ka­vanaugh fol­lowed script. Sus­pi­cions would cor­rode the court’s cred­i­bil­ity.

Mr. Ka­vanaugh re­sponded that he needed to be care­ful an­swer­ing ques­tions about what he would do if such a case came up, ex­plain­ing that mak­ing any com­mit­ments would harm ju­di­cial in­de­pen­dence. Yet he could have of­fered more as­sur­ance with­out mak­ing a di­rect com­mit­ment, as he did on other top­ics.

If the process for con­sid­er­ing Mr. Ka­vanaugh were com­plete, this lapse might rep­re­sent the big­gest is­sue se­na­tors would have to weigh. With the rushed process Repub­li­cans have im­posed, they must also con­sider whether they want rail­road­ing the mi­nor­ity to be the new nor­mal.

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