Why bother holding hearings for Kavanaugh?

Why bother holding hearings for Kavanaugh?

By Ellen Ratner   
Judge Brett Kavanaugh at his confirmation hearing before the Senate Judiciary Committee to become an Associate Justice of the US Supreme Court, (Photo ©2018 Doug Christian)
Judge Brett Kavanaugh at his confirmation hearing earlier this month before the Senate Judiciary Committee to become an associate justice of the Supreme Court, (Photo ©2018 Doug Christian/TMN)

LOS ANGELES — Why should we have days of hearings from the Senate Judiciary Committee? There is a Constitutional duty of “Advise and Consent,” but does it mean several days of hearings and questions? Judge Kavanaugh, like all nominees has been coached by the White House in what are called “murder boards” – Q and A sessions where the nominee gets the tough questions and then he or she can practice answering them.

There are a few senators whose votes can swing the seating of Judge Kavanaugh on the Supreme Court. My guess is they already made up their mind in the private meetings they had with the judge and also from the polls that ensure their elections (if they are running this year). Judge Kavanaugh is going to be confirmed.

The only reason to have hearings is what he says on the record can later be used to impeach him if he offers an opinion that is directly contradictory to what he says. He is being most careful and not answering questions.

Did he lie when he was being confirmed for his first federal judgeship? Several emails show he might not be telling the truth. From the Daily Beast:

When Sen. Patrick Leahy (D-VT) asked him Thursday, “did you interview William Pryor?” Kavanaugh hedged a bit, saying “I don’t believe so. It’s possible but I don’t believe so.”

Leahy responded by entering a formerly confidential email into the record that states clearly that Kavanaugh actually did interview Pryor. “How did the Pryor interview go?” he was asked in December, 2002. “Call me,” he said on the email.

On Roe v. Wade, he told Senator Collins , the Republican from Maine, that he considered it settled law. But he clearly questioned it when he was working in the Bush administration. Again, here is the Daily Beast column:

At issue is an op-ed which Kavanaugh was drafting which originally said that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land” – language quite similar to that used by Kavanaugh himself in his confirmation hearings.

In a 2003 email, however, Kavanaugh said, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

Asked about the apparent contradiction Thursday, Kavanaugh noted that it is factually true that “all legal scholars” do not agree that Roe is the settled law of the land. Of course, “all legal scholars” don’t agree on anything at all, which is why phrases like that are known as “weasel words,” since they allow the writer to weasel out of meaning anything.

Speaking of splitting linguistic hairs, Kavanaugh then reiterated his view that Roe is a precedent. But that is precisely not the same thing as the “settled law of the land.” Indeed, Kavanaugh’s point in the email is exactly that: While Roe is a precedent, it isn’t considered “settled law” because the Supreme Court can overrule its own precedent.

The Human Rights Campaign put out a long objection to Judge Kavanugh and cited his speeches. They said, “More tellingly, Judge Kavanaugh recently gave public speeches extensively praising the late Justice Antonin Scalia and Chief Justice William Rehnquist, both of whom have some of the most pronounced anti-LGBTQ records of modern jurists.

Scalia penned a blistering dissent in Obergefell, which he called a ‘threat to American democracy.’ Scalia and Rehnquist (and Justice Thomas) dissented in Lawrence, and would have upheld Texas’ law criminalizing same-sex intimate contact. During the oral arguments in Lawrence, Rehnquist reiterated the harmful and baseless stereotype that gay men are pedophiles when he asked whether states can have laws that ‘prefer non-homosexuals to homosexuals as kindergarten teachers.’ Doubling down on that stereotype, Scalia added that states ‘[o]nly [need show] that children might be induced to follow the path to homosexuality.’ Justice Rehnquist joined the majority decision in Bowers, which upheld a Georgia law requiring ‘imprisonment of not less than one nor more than 20 years’ for private acts of sodomy.”

Kavanugh will most likely be confirmed. The votes are there even if Collins of Maine and Murkowski of Alaska vote against him, as there are some red state Democrats such as Joseph Manchin of West Virginia and Heidi Heitkamp of North Dakota that will vote for him, since they are up for re-election.

It is a done deal; and outside of possible impeachment (which will not happen), there are not any reasons to even hold hearings – they are just a sham.

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