The Kavanaugh Hearings Are an Egregious Abuse of Power

It devolved into farce even before Supreme Court nominee Brett Kavanaugh made it into the Senate Judiciary Committee hearing room. It started with the release of selected portions of his opening remarks. He would be an "umpire," he promised, a neutral arbiter of law and fact who would "be part of a Team of Nine" if confirmed to the High Court. Lofty words, familiar words, empty words designed to cover up one of the most egregious abuses of power Congress has ever foisted on the American people during a judicial confirmation process. Kavanaugh will be an umpire, sure, one who calls balls for one team and strikes for another.

And the farce continued in the early moments of the hearing, when furious Democrats immediately denounced the proceedings and called on Senate Judiciary Committee chairman Charles Grassley (R-Iowa) to postpone it to allow for a reasonable review of 42,000 pages of relevant documents produced just hours before the hearing began. Denounced Grassley, that is, in between protests from citizens seated in the hearing room, who in turn were angrily denouncing the candidate and the process by which he is to be confirmed. And Grassley? The grand champion of congressional oversight morphed into a shill for executive secrecy.

Let's be clear at the start of this momentous week. The Supreme Court nominations of Merrick Garland and Kavanaugh are two sides of the same coin. The extraordinary bid by Senate Republicans to shield Kavanaugh's executive branch record from public scrutiny is just as sneaky and cynical as were their unforgivable efforts to preclude Garland from getting a hearing as an Obama nominee in 2016. In both instances, the party in narrow control of the Senate breached history and protocol to achieve partisan ends and ensure a Republican majority on the court perhaps for another two generations.

There is only one reason why Grassley worked in tandem with White House lawyers and lawyers for former president George W. Bush to ensure that tens of thousands of pages of relevant documents were withheld from Senate Democrats and the public. Senate Republicans understand that Kavanaugh's already weak nomination is going to be weakened, not strengthened, by whatever is contained in all those documents from his time during the Bush administration. Democrats aren't paranoid: Republicans really are afraid of a "smoking gun" in those papers.

Grassley and company this week are striving mightily to ensure that a historically unpopular president who picked a historically unpopular Supreme Court nominee will likely get that nominee onto the court despite an unprecedented amount of secrecy over the nominee's record.

Grassley and company this week are striving mightily to ensure that a historically unpopular president who picked a historically unpopular Supreme Court nominee will likely get that nominee onto the court despite an unprecedented amount of secrecy over the nominee's record. Secrecy that goes directly to questions of executive authority that in turn go directly to the heart of a case a Justice Kavanaugh could soon hear: Can President Trump, already an unindicted coconspirator, exercise some sort of constitutional privilege to avoid responding to a subpoena or demand for grand jury testimony in a pending criminal case?

"It's a sham," said Sen. Patrick Leahy, the Vermont Democrat who has served for decades on the Judiciary Committee and who knows a cover-up when he sees one. Read his opening statement if you want to understand the scope of what Senate Republicans are seeking to achieve by rushing the Kavanaugh nomination through before anyone has a meaningful chance to review more information about his 35 months of executive branch service. For their part, one Republican senator after another extolled Kavanaugh's virtues and lamented the lack of respect and decorum offered by Democrats. It's as if Merrick Garland never existed.

On this day of bloviating, it was Sen. Sheldon Whitehouse (D-R.I.) whose remarks were most profound. He explained in detail how Kavanaugh's nomination fits into the broader picture of conservative control over the Supreme Court and how Senate Republicans were complicit in delivering judicial ideologues like Neil Gorsuch and Kavanaugh to the precipice of the High Court, the job of a lifetime. "We've seen this movie before and we know how it ends," Whitehouse said. And he's right. We'll hear more empty words from Kavanaugh in the coming days and then, when he's confirmed, he'll do the bidding of the Federalist Society and his other right-wing benefactors.

Tomorrow we'll have hours of meandering questions from senators and meaningless responses from the nominee, who will say all the things we've come to expect from Supreme Court nominees. If we are lucky, we'll experience a rare moment of candor, an unexpected exchange that isn't scripted, but don't bet on it. The Republicans guiding Kavanaugh know today that they have the votes to ensure his committee endorsement and a narrow majority to win in the full Senate. Only some major mistake or revelation can change that, which is why we aren't going to see those documents anytime soon and which is why Justice Kavanaugh, sooner rather than later, is going to be sitting in judgment on the president who nominated him.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.