Commentary: The right way to run Kavanaugh’s SCOTUS hearing

The confirmation hearings for Supreme Court nominee Brett Kavanaugh are brimming with all the bombast and bluster we’ve come to expect from today’s politics – replete with juicy soundbites expertly packaged for cable and the Twitterverse. But it shouldn’t be this way, and Americans of all stripes should demand that government be made boring again. 

U.S. Supreme Court nominee judge Brett Kavanaugh is sworn in during a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, September 4, 2018. REUTERS/Chris Wattie

Even though Kavanaugh’s appointment seems all but certain, both parties are using the three- to four-day affair to rev up their respective bases, which includes raising millions of dollars off fear (of the nominee or the party opposing him), by scoring political points rather than actually educating themselves and the public about Kavanaugh’s views.

That’s shameful because President Donald Trump’s 53-year-old pick will have the power to tilt the decisions of the Court to the right for decades to come. But the hearings’ lack of substance isn’t surprising.

In recent election cycles, extremist politicians have made the nation feverishly and unnecessarily polarized by ratcheting up their doomsday rhetoric. So, in a sense, many Americans who tune in to these hearings will be given a front row seat to see their own partisan fervor mirrored back to them.

The confirmation process has become part of a spectacle the nation’s founders would never have recognized. While they envisioned an analytical examination of nominees’ qualifications, philosophy and temperament, the modern day Supreme Court hearings are made-for-TV drama where the outcome was clear as soon as Trump unveiled Kavanaugh in a prime-time Rose Garden event.

Although the public hearings are showcasing feisty exchanges, the real drama had already unfolded in private meetings between the president and the conservatives who have worked to control the process since Trump promised during his 2016 campaign that his judicial nominees would be chosen from names given to him by the “Federalist people.”

Kavanaugh, like Justice Neil Gorsuch before him, was on a list of pre-approved potential Court nominees that was compiled by the Federalist Society – a group representing the nation’s conservative lawyers – and the increasingly far-right Heritage Foundation – the nation’s premier conservative think tank.

Like all recent Supreme Court nominees, Kavanaugh has been undergoing intense, training sessions, designed to prepare him for tough questioning from Democrats. These are reported to have included mock hearings where at least two Republican members of the very Judiciary Committee he’s testifying before (Senators Orrin Hatch of Utah and Lindsey Graham of South Carolina) prepped him to avoid answering Democrats’ questions on executive power, Roe v. Wade, Citizens United, Obamacare, unions, environmental law, the Second Amendment and just about any other issue in American politics.

Observers are watching for any “gaffes.” Sadly, in today’s political climate, a gaffe is considered any honest, unvarnished glimpse into how Kavanaugh plans to rule on those critical issues.

Meanwhile, conservative groups are taking the judicial battle beyond Washington. Organizations like the Judicial Crisis Network are reported to be spending millions on pro-Kavanaugh television ads in battleground states. Progressive groups are lobbying too, hosting some 500 anti-Kavanaugh events across the country and spending about $1.3 million – a fraction of the conservative allocation – on TV, print and digital ads to drum up opposition.

That means the nation’s partisans are firmly entrenched in their respective corners, and the hearings are unlikely to change any minds.

Both parties share the blame. Democrat Harry Reid set the stage for the hearings’ non-drama drama while he was Senate majority leader by blowing up the longstanding filibuster rule that could have required 60 Senate votes – rather than a simple majority – to confirm most judicial and executive choices.

While Reid stopped short of extending that mere 51-vote threshold to Supreme Court nominees, the die was cast. When Democrats threatened to filibuster Gorsuch, current Senate Majority Leader Mitch McConnell followed in his predecessor’s footsteps and extended the simple majority vote to Supreme Court nominees, too.

Judges – including some now on the Supreme Court – have also allowed themselves to contribute to the perception of hyper-partisanship on the Court. That’s in part because they sat through grooming sessions orchestrated by the very lawmakers whose signature laws they’ll eventually be called upon to rule on.

There’s a better way.

Kavanaugh could, like nominees such as Robert Bork once did, actually speak his mind. Senators on both sides of the aisle could come into the hearings open-minded about whether they will vote to confirm him, regardless of party affiliation. And the American public should also wait to hear from Kavanaugh before deciding whether he’s a despicable jurist or the greatest nominee ever, as some on both sides have claimed. 

The Constitution granted senators six-year terms explicitly to give them the space to make up their minds after meticulously studying issues and nominees. Even in the era of 24-hour cable “news” and unrelenting social media, the American public – especially those on the far right and left – should give senators the space this week to allow the founder’s vision of statecraft to blossom in the upper chamber once again.

Government was once boring; it can be again. And we’d all be better off for it.

About the Author

Matt Laslo is a veteran congressional reporter and an adjunct professor at Johns Hopkins University and George Washington University. @MattLaslo

The views expressed in this article are not those of Reuters News.