With the demise of the filibuster for judicial nominations, the Senate has become a more partisan body. Members of the opposition party no longer have to take difficult votes to confirm presidential nominees, and so they no longer have to moderate their rhetoric to avoid the appearance of hypocrisy. Many expected, therefore, that Brett Kavanaugh’s confirmation hearings would tempt Democrats to engage in theatrics and hyperbole. Few, however, foresaw just how recklessly the Judiciary Committee’s Democratic members would behave.
The sordid performance to which Americans were privy was not the harmless kind that can be chalked up to presidential ambitions. Right from the start, Democratic committee members took a sledgehammer to the foundations of the institution in which they are privileged to serve.
Sen. Cory Booker made national headlines by declaring himself “Spartacus,” but the actions he undertook deserved closer attention than did the scenery he chewed. Booker insisted that it was his deliberate intention to violate longstanding Senate confidentiality rules supposedly in service to transparency. It turns out that the documents Booker tried to release to the public had already been exempted from confidentiality. Booker was adamant, though, that he had undermined the Senate’s integrity. You see, that, not transparency, was his true objective. It was what he believed his constituents wanted from him.
Booker wasn’t alone. Sen. Sheldon Whitehouse appeared to share his colleague’s political instincts. “I want to make it absolutely clear that I do not accept the process,” he said of the committee’s vetting of Kavanaugh’s documents. “Because I do not accept its legitimacy or validity,” Whitehouse added, he did not have to abide by the rules and conventions that governed Senate conduct.
When the committee’s Democratic members were not trying to subvert the Senate’s credibility, they were attempting to impugn Judge Kavanaugh’s character via innuendo or outright fabrications.
Sen. Kamala Harris managed to secure a rare rebuke from the fact-checking institution PolitiFact, which is charitably inclined toward Democratic claims. “Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control,” read her comments on Twitter accompanying an 11-second clip in which Kavanaugh characterized certain forms of birth control as “abortion-inducing drugs.” “Make no mistake,” Harris wrote, “this is about punishing women.” But the senator had failed to include mitigating context in that clip, which would have made it clear that Kavanaugh was simply restating the arguments made by the plaintiffs in the case in question.
Later, Harris probed Kavanaugh as to whether he believed the Chinese Exclusion Act of 1882, which has never been explicitly ruled unconstitutional, was wrongly upheld by the Supreme Court. Despite calling the decisions of this period “discriminatory,” Kavanaugh declined to elaborate on a case that could theoretically come before the Supreme Court. This, the judge’s detractors insisted, was “alarming” and perhaps evidence of latent racial hostility. In fact, it was an unremarkable example of how Supreme Court nominees tend to avoid offering “forecasts” of how they will decide cases without having heard the arguments—a routine deemed “the Ginsburg Rule” after Ruth Bader, who perfected the practice.
Over a week later, Harris had still not explained what she was getting at. But she doesn’t have to. The vagueness of her claim was designed to allow Kavanaugh’s opponents’ imaginations to run wild, leading them to draw the worst possible conclusions about this likely Supreme Court justice and to conclude that the process by which he was confirmed was a sham.
Harris may not have been alone in appealing to this shameful tactic. On Thursday, Sen. Dianne Feinstein shocked observers when she released a cryptic statement revealing that she had “referred” to “federal investigative authorities” a letter involving Kavanaugh’s conduct. It’s human nature to arrive at the worst imaginable conclusion as to what these unstated claims might be, and that’s precisely what Kavanaugh’s opponents did. It turned out that the 35-year-old accusations involve an anonymous woman who was allegedly cornered in a bedroom by Kavanaugh and a friend during a high-school party. Kavanaugh, the letter alleged, put a hand over her mouth, but the woman removed herself from the situation before anything else occurred. All were minors at the time of this alleged episode, and Kavanaugh denies the allegations.
Some thought it was odd for Feinstein to refer these potentially serious allegations to the FBI this week and in such a public fashion when the allegations contained in a letter were known to Democrats for months. The letter was, after all, obtained by Democratic Rep. Anna Eshoo in July. But it doesn’t seem confusing when considering the facts that the FBI all but dismissed the referral off-hand and reporting on the episode lacks any corroboration to substantiate the claims made by the alleged victim here. It is hard not to conclude that this is an attempt to affix an asterisk to Brett Kavanaugh’s name. Democrats will not only claim that this confirmation process was tainted but may now contend that Kavanaugh cannot be an impartial arbitrator—not with unresolved clouds of suspicion involving sexual assault hanging over his head.
Ultimately, as public polling suggests, the Democratic Party’s effort to tarnish Kavanaugh’s reputation through insinuation and theatrics has had the intended effect. Support for this nominee now falls squarely along party lines. But the collateral damage Senate Democrats have done to America’s governing institutions amid this scorched-earth campaign could have lasting and terrible consequences for the country.
