What To Expect When You're Confirming

I know it's been a long time since I've written a blog post, but I can assure you, I have a good excuse. You see, on June 27th, Supreme Court Justice Anthony Kennedy announced he'd be retiring at the end of July, leaving it open for the President to appoint another judge to the Supreme Court.

Upon hearing the news, I fainted from shock and I was only recently revived because I had to start law school. I'd hoped that by the time I came out of my Fear Coma our nation would have figured out a way to appoint a nice, sensible judge like, I don't know off the top of my head, Jane Kelly. Unfortunately, I awoke to find the President had nominated Judge Brett Kavanaugh and the hearings were set to begin on Tuesday, September 4th. It's almost enough to make a girl slip back into a Fear Coma.

Original creator of this comic is  Branson Reese , who is worth a follow!

Original creator of this comic is Branson Reese, who is worth a follow!

For awhile, I was optimistic that the Democrats could defeat Kavanaugh. There is precedent for the Senate refusing to confirm ideologically extreme judicial nominees. When President Reagan appointed Robert Bork to the Supreme Court, the Senate Judiciary Committee (led by the great Joe Biden) exposed some past statements and decisions by Bork which confirmed he was opposed to civil rights law and privacy rights. His belief that there is no right to privacy in the Constitution, and the implicit assertion that he would not vote to uphold Roe v. Wade or Griswold v. Connecticut (which gave married couple's access to birth control) was particularly shocking to Senators. His extreme views prevented him from being confirmed, with 42 senators voting for him, and 58 voting against. After Bork's defeat, President Reagan appointed a more moderate judge, which is how we got Anthony Kennedy on the court in the first place.

"There's hope for defeating ideologically extreme nominees," I thought to myself. "We're going to be safe as long as Senator Feinstein and the other Democrats on the Judiciary Committee do their job and expose Kavanaugh's anti-abortion views and his idea that presidents should be protected from criminal investigations."

I'm sure that last point is totally unrelated to why our President nominated him. 

But as the hearing day drew closer though, I was less and less sure that a well-run hearing would stop Kavanaugh, or even expose his political ideology. And for that, I blame Justice Ruth Bader Ginsburg.

Following Bork's failure to be confirmed, judicial nominees became a lot more cagey about their political views, particularly if those views may be seen as controversial by the opposing party. When Justice Ginsburg was in confirmation hearings, she deflected from a lot of questions, arguing that it would be improper to give hints of how she would rule in future cases. In effect, judges looking to get confirmed would say that they couldn't answer questions about thorny political issues because those issues may come before them in future cases.

The Ginsburg Rule, as they call this practice, is actually a little unfairly named, given that Justice Ginsburg actually answered a lot of questions about Roe v. Wade, a right to privacy, and other hot-button issues at the time. But since then, judges from Sonia Sotomayor to Neil Gorsuch have refused to answer questions about controversial cases, on the off chance these cases may come before them.

When they're not playing coy about controversy, judges will give non-answers where they pretend that certain legal questions are settled, even though every rational person knows they're not. Kavanaugh has already started this, telling Senator Collins that he believed Roe v. Wade was "settled law." If this sounds familiar, it's because it's exactly what Chief Justice John Roberts said when he was in his confirmation hearing.

While on the Supreme Court, Chief Justice Roberts voted to uphold restrictions on Texas abortion clinics that would have effectively ended the right to a safe and legal abortion in that state. Justice Samuel Alito also said Roe was settled law, and he wrote the dissent in that same case.

Saying Roe v. Wade is settled law doesn't actually say much but neither does it prove that Kavanaugh is opposed to abortion, particularly since he's never really said anything else about it. And he's unlikely to say anything about it in his confirmation hearing. He's unlikely to say anything shocking in his confirmation hearing at all, which means preventing Kavanaugh from being on the court will depend on  the Democrats rallying enough opposition to convince some Republicans to move over to their side.

Currently, there are 49 Democratic U.S. Senators (ok 47, plus Senator Angus King and Senator Bernie Sanders who caucus with the Democrats) and 50 Republican U.S. Senators, following Senator John McCain's death last week. If the Governor of Arizona appoints a Republican to fill McCain's Senate seat before the full Senate votes on Kavanaugh (as he is expected to) the Democrats will have to convince two Republicans to vote against Kavanaugh. And that's if they're able to keep their whole party together and voting against Kavanaugh.

I'm not saying we're doomed to get Kavanaugh on the court, I'm just saying it doesn't look good.

As the court has become more polarized, it's more likely that presidents will appoint judges who align with them politically. And it's less likely that those judges will expose these biases, even in a particularly well-run confirmation hearing. Because these are lifetime appointments, the fate of the court for the next generation basically depends on how well a couple of Senators can persuade a couple of other Senators to vote against the political party they belong to and have a lot of political incentive to vote with.

Of course, nothing is impossible. And with the future of a woman's right to choose resting on defeating Kavanaugh, I sure hope Senator Schumer is prepared to twist a lot of arms.