When Judge Brett Kavanaugh appears before the Senate Judiciary Committee, Senators will have an opportunity to examine his record, his judicial philosophy, and his qualifications for a lifetime appointment to the Supreme Court.
I wish I could be there. Because I have some questions I’d love to see him answer.
1. Judge Kavanaugh, welcome. I’d like to start with a series of yes or no questions. The first one is a gimme. Do you think it’s proper for judges to make determinations based on their ideological preconceptions or their personal biases?
He’ll say no, of course.
2. Good. Would you agree that judges should make determinations based on their understanding of the facts?
3. And would you agree that it’s important for a judge to obtain a full and fair understanding of the facts before making a determination?
This is all pretty standard stuff. Then, however, I’d turn to an issue that’s received a bit of attention—but not nearly enough.
4. When you were introduced by President Trump, you spoke to the American people for the very first time as a nominee for the Supreme Court. That is a very important moment in this process, wouldn’t you agree?
5. And one of the very first things that came out of your mouth as a nominee for the Supreme Court was the following assertion: “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Did I quote you correctly?
This claim, of course, was not just false, but ridiculous. The Washington Post’s Aaron Blake (a Minnesota native) called it “a thoroughly inauspicious way to begin your application to the nation’s highest court, where you will be deciding the merits of the country’s most important legal and factual claims.”
It would be only fair to give Kavanaugh a chance to retract that weirdly specific bit of bullshit.
6. Do you stand by those words today? Yes or no?
If he says that he doesn’t, I’d skip down to Question 22. But, if he won’t take it back, I’d want to pin him down.
7. I just want to be clear. You are under oath today, correct?
8. So, today, you are telling the American people—under oath—that it is your determination that “[n]o president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”
9. And that determination—it wouldn’t be based on your ideological preconceptions, would it?
10. And it’s not based on any personal bias, is it?
11. No, of course not. That would be improper. Instead, it is based on your understanding of the facts, right?
12. Was it a “full and fair” understanding of the facts?
Again, if he decided here to fold his hand and admit that he was full of it, I’d skip down to Question 22. But if not, I’d continue with…
13. Great. Judge Kavanaugh, are you aware that there have been 162 nominations to the Supreme Court over the past 229 years?
14. And do you have a full and fair understanding of the circumstances surrounding each nomination?
Of course he doesn’t.
15. Of course you don’t. So, in actuality, your statement at that press conference did not reflect a full and fair understanding of the facts—isn’t that right?
16. This was one of the very first public statements you made to the American people as a nominee for the Supreme Court. A factual assertion you have repeated here under oath. And it did not meet your standard for how a judge should make determinations about issues of national importance.
17. Let me ask you about some widely-reported facts. Are you aware of the widely-reported fact that President Trump selected you from a list of 25 jurists provided by the conservative Federalist Society?
18. Are you aware of any other case in which a President has selected a nominee from a list provided to him by a partisan advocacy group?
19. Are you aware of the widely-reported fact that President Trump spent just two weeks mulling over his selection—whereas, for example, President Obama spent roughly a month before making each of his two Supreme Court nominations?
20. Let me ask you this. Are you aware of any facts that support your assertion that—and I’ll quote it again—“No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination”?
21. And yet, you still believe that your assertion was based on a full and fair understanding of the facts?
Then I’d try to sum it up.
22. Judge Kavanaugh, do you believe that intellectual honesty and a scrupulous adherence to the facts are important characteristics in a Supreme Court Justice?
23: And would you say that you displayed those characteristics to your own satisfaction when you made in your very first public remarks (and reiterated here today under oath) your assertion that, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination”?
By the way: Once I had him pinned down on his ridiculous lie, I’d ask where it came from.
24: Let me ask you about something else. Did President Trump, or anyone in his administration, have any input on your remarks at that press conference?
25: Did President Trump, or anyone in his administration, instruct, ask, or suggest that you make that assertion?
I know this might seem like a long chase. Senators have a lot of ground they want to cover in these hearings: health care, choice, net neutrality, and a long list of incredibly important issues on which Kavanaugh has been, and would continue to be, terrible. After all, he was chosen through a shoddy, disgraceful process overseen by the Federalist Society and the Heritage Foundation.
And, of course, Kavanaugh is a smart guy. He and his team no doubt know that his easily provable lie is a potential problem, and I’m sure they’re workshopping answers at this very moment.
But pinning him down on this is important, for a couple of reasons.
First of all, it was exactly the kind of lie that has been plaguing our discourse for a generation, the kind that has become prevalent under the Trump administration. It’s just a totally made-up assertion that is exactly the opposite of the truth, flowing out of the mouth of a committed partisan who doesn’t care that it’s false. And if you’re sick of people doing that and getting away with it, at some point someone is going to have to start using a prominent stage to bust these lies. If they go unchallenged, then why would any of these guys stop lying, ever?
More to the point: This episode is a perfect illustration of what the conservative movement has been doing to the Supreme Court nomination and confirmation process specifically, and the judicial system generally, for a generation now.
In theory, judges are supposed to be above partisan politics. They don’t make law, they interpret it. They don’t create the strike zone, they just call balls and strikes. You know the routine.
The truth is, for the last generation, conservatives have politicized the Court, and the courts. Kavanaugh is the very model of a young, arch-conservative judge who has been groomed for moments like this one precisely because conservative activists know that he will issue expansive, activist rulings to further their agenda. He has spent his whole career carefully cultivating a reputation as a serious and thoughtful legal scholar—but he wouldn’t have been on that list if he weren’t committed to the right-wing cause.
That’s why it’s critical to recognize that the very first thing he did as a Supreme Court nominee was to parrot a false, partisan talking point. Of course that’s what he did. Advancing the goals of the Republican Party and the conservative movement is what he’s there to do.
When the Kavanaugh nomination was announced, I saw a lot of statements from Senators saying they looked forward to carefully evaluating his credentials and asking him questions about his judicial philosophy. But anyone who ignores the obvious fact that this nomination, and the judicial nomination process in general, has become a partisan exercise for Republicans is just playing along with the farce.
Instead, we ought to be having a real conversation about what
conservatives have done to the principle of judicial independence—and
what progressives can do to correct it. I can think of no better
example of the problem than Brett Kavanaugh’s nomination and the
bizarre lie he uttered moments after it was made official. And I can
think of no better opportunity to start turning the tide than
Kavanaugh’s confirmation hearing—even if it means going down a rabbit
hole for a few uncomfortable minutes.
Former U.S. Senator Al Franken