My colleague Melissa Haussman (Political Science) and I sat down—at our computers—and had a virtual conversation over the weekend about the Kavanaugh confirmation process. These are some of the answers she kindly provided to my questions.
Andrew M. Johnston
AJ: There’s been a lot of apocalyptic language on both sides of the aisle about which one is destroying the judicial confirmation process, but there have been deeply bitter and partisan Supreme Court confirmations before (Roger Taney if we go back to the Jackson era, Robert Bork in 1987 and Clarence Thomas in 1991), and indeed George Will cited the Bork case paralleling the attacks on Kavanaugh. How has this process compared? Do you see a real change in the political tenor of Supreme Court selections over the last 30 years or so?
MH: According to Orenstein and Mann[1]and Sean Theriault[2]there has been increased polarization in the House since the Gingrich era—very deliberately done. The issue for judicial nominations has been that, once these folks got to the Senate, they behaved unlike previously collegial Senators and more like Gingrich partisan warriors-and if you look at the Senate Judiciary Committee composition that voted to support Kavanaugh in 2006 you’ll see most of the Republican Senators on there were identified by Theriault as Gingrich-Senators. And of course Lindsay Graham is a remaining member of both. Yes, I think we can argue that there has been a change in the political tenor of Supreme Court nominations ever since the Federalist Society was formed in 1982 by Edwin Meese and Robert Bork,[3]with the avowed goal of making the federal judiciary (and creating more conservative law schools) more responsive to the conservative desire to increase Presidential power, increase profit, increase social conservatism (which of course fly in the face of the “limited government” ethos of the libertarian wing of the movement).
I refer back to the statistic I cited [in the CBC Radio interview] from Scott Bomboy’s article[4]—“The facts about supreme Court nominations and senate control”—in which Democrats have historically confirmed Presidential Supreme Court nominees 13 times since 1945, and under Republican-controlled Senates. For Democratic Presidents there have been none since 1895. Obama got his two picks (Sotomayor and Kagan before 2014 when the Senate reverted to Republican control). And look at Kagan’s interesting history in the DC Court of Appeals where the Senate never acted on her, when she was nominated by Clinton. The DC Circuit Court is an important stepping stone to Supreme Court and the most conservative of all federal appellate courts, with the exception of Chief Justice Merrick Garland, a Democrat.
The related issue is that under polarization, each party has increasingly filibustered each other’s nominees to the federal court (District, Appellate and Supreme). The Republican minority was so bad at this under Obama that Harry Reid invoked the nuclear option (reducing the 60-vote threshold previously needed to confirm a federal justice to avoid a filibuster) down to 51. But he only invoked it for the lower two ranks of the federal judiciary (District and Appellate). Then, of course, Mitch McConnell (who was furious at Reid) extended it to confirm Gorsuch (applying the rule now to Supreme Court hearings). In other words, the two sides get along so little—and again I agree with Theriault’s Gingrich Senatorsanalysis here as well as increasing Republican dominance of the South generally so that even non-Gingrich Senators act in lockstep—that they had to invoke this nuclear option for all federal judgeships starting in 2013, since nobody could get anything through.
Garland is important here because of the length of the delay (which turned permanent); indeed it was the longest in US history. And as I think, if the Chief Justice of the DC appeals Court wasn’t good enough for Senate Republicans, why in the world would Kavanaugh (who faced delays in his DC Appeals Court confirmation from 2003, after his nomination by Bush, to 2006 due to fears about his record and reputation for being intemperate, and highly partisan in past decisions and general worldview). Well we know because he’s been a key player in the Federalist Society and was in the Bush White House.
Another potential reason for hostility toward Kavanaugh was mentioned by Amy Klobuchar (Senior Dem. Senator from Minnesota, and member of the Senate Judiciary Committee) this morning: getting rid of the net neutrality rule by the DC Court of Appeals. This court often reverses FCC decisions. So some Senators may be after him for that as well as his generally socially conservative stance on abortion, women, etc.
AJ: How significance in the American Bar Association’s call for an FBI investigation? It clearly hasn’t stopped the Senate Committee but will it influence the Senate? Do you see any likelihood that it will happen?
It’s happening as we know but there are concerns that Trump is micro managing it.
[Ed.: As of Monday afternoon, October 1st, Trump indicated that he had authorized the FBI to expand its investigation as needed, but that at the same time he believed speed was important and in the end the White House would defer “to whatever the Senators want,” thus leaving open the possibility that he could change his mind later in the week.]
AJ: This confirmation hearing seems to be a kind of perfect storm of the #MeToo movement coming up against the increasing distemper of US politics under Trump, especially given his own reputation on these issues. Do you think this moment will define either the future of the administration or of #MeToo?
MH: Probably not.
AJ: Trump reacted positively to Kavanaugh’s rebuttal, calling it “powerful,” while others have called it an “adolescent temper tantrum” (Alexandra Schwartz, The New Yorker); or put another way, as one headline put it, two voices pierced Washington yesterday, “I’m terrified” and “I’m innocent”. Who do you believe?
MH: I definitely believe her. There was a piece in The Atlanticfrom July 2018 that showed conclusively that there have been long term concerns about Kavanaugh’s truthfulness in Senate nomination hearings as expressed in 2007 by Senators Leahy and Durbin. Classmates, more recently, have suggested that his claims about his own drinking are simply not credible.
AJ: You watched both Ford’s testimony and Kavanaugh’s rebuttal—what moments most stood out for you in yesterday’s events?
For Kavanaugh, his ridiculous retort back to Klobuchar about blacking out (“No, have you?”) and for Ford I think all of it, especially the fact that we know she told therapists about this years before.
AJ: What might happen if the FBI decides there’s not enough evidence one way or another or if it provides some support for Ford’s account?
MH: I can’t really guess either way. That’s up to the Senate!
AJ: Can you see any way forward that won’t make this descent into more and more bitter rhetoric about which side is destroying the process even worse? How do you separate yourself as a political scientist who has also worked for the Democratic Party from your answer?
Well, I grew up in a Republican family, believe it or not … But let’s be clear, this was put on by the Federalist Society—as was Gorsuch—and Trump said publicly during his campaign he’d let the Federalist Society do the nominating. Maybe that contributed more to his win among certain elites than we know. I think the Federalist Society has inexorably increased its reach into the Federal Judiciary and won’t stop, even if Kavanaugh is not confirmed, although I do think at this point the process is somewhat rigged in his favour, since I don’t think Grassley or McConnell for one second care about the issue of fairness to women.
[1] Norman J. Ornstein (American Enterprise Institute) and Thomas E. Mann (Brookings Institution), It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (2012).
[2] Sean M. Theriault (Associate Professor of Government, University of Texas), The Gingrich Senators: The Roots of Partisan Warfare in Congress (2013).
[3] See Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015); Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008).
[4] Editor in chief of the National Constitution Center.
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Melissa Haussman is a Professor of Political Science, who hold her Ph.D. from Duke University. She teaches in both the US and comparative North American fields. Her scholarship has generally focused on questions of women’s access to political power in North America. Her research has centered on women’s ability to gender public policy and related debates, especially on reproductive rights and health care systems. Melissa is the Co-Editor, with Professor Oriana Palusci, University of Naples, Italy, of the peer-reviewed International Journal of Canadian Studies. She is on the Editorial Board of the Institute for Women’s Policy Research Journal, the Journal of Women, Politics and Policy. Melissa has also has served on the Editorial Boards of the APSA journal PS and the IPSA journal International Political Science Review. She has held office in the American and International Political Science Associations and in the Association for Canadian Studies in the US. She previously taught at Suffolk University, Boston, MA from 1995-2005. Melissa supervises students on Washington internships, based on the agreement with The Washington Center for Internships and Academic Seminars to Carleton which she brought to Carleton in 2005.