My colleague Melissa Haussman (Political Science) and I sat down\u2014at our computers\u2014and had a virtual conversation over the weekend about the Kavanaugh confirmation process. These are some of the answers she kindly provided to my questions.<\/p>\n
Andrew M. Johnston<\/p>\n
\u00a0<\/strong><\/p>\n AJ: There\u2019s 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?<\/strong><\/p>\n MH:<\/strong>\u00a0 According to Orenstein and Mann<\/a>[1]and Sean Theriault<\/a>[2]there has been increased polarization in the House since the Gingrich era\u2014very deliberately done.\u00a0The 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\u2019ll 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.\u00a0Yes, 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,<\/a>[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 \u201climited government\u201d ethos of the libertarian wing of the movement).<\/p>\n I refer back to the statistic I cited [in the CBC Radio interview] from Scott Bomboy\u2019s article<\/a>[4]\u2014\u201cThe facts about supreme Court nominations and senate control\u201d\u2014in 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.\u00a0Obama got his two picks (Sotomayor and Kagan before 2014 when the Senate reverted to Republican control). And look at Kagan\u2019s 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.<\/p>\n The related issue is that under polarization, each party has increasingly filibustered each other\u2019s nominees to the federal court (District, Appellate and Supreme).\u00a0The 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.\u00a0But 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).\u00a0In other words, the two sides get along so little\u2014and again I agree with Theriault\u2019s Gingrich Senators<\/em>analysis here as well as increasing Republican dominance of the South generally so that even non-Gingrich Senators act in lockstep\u2014that they had to invoke this nuclear option for all federal judgeships starting in 2013, since nobody could get anything through.<\/p>\n Garland is important here because of the length of the delay (which turned permanent); indeed it was the longest in US history.\u00a0And as I think, if the Chief Justice of the DC appeals Court wasn\u2019t 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\u2019s been a key player in the Federalist Society and was in the Bush White House.<\/p>\n 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.<\/p>\n AJ: How significance in the American Bar Association\u2019s call for an FBI investigation? It clearly hasn\u2019t stopped the Senate Committee but will it influence the Senate? Do you see any likelihood that it will happen?<\/strong><\/p>\n It\u2019s happening as we know but there are concerns that Trump is micro managing it.<\/p>\n [Ed.: As of Monday afternoon, October 1st<\/sup>, 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 \u201cto whatever the Senators want,\u201d thus leaving open the possibility that he could change his mind later in the week.]<\/p>\n 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?<\/strong><\/p>\n MH: Probably not.<\/p>\n AJ: Trump reacted positively to Kavanaugh\u2019s rebuttal, calling it \u201cpowerful,\u201d while others have called it an \u201cadolescent temper tantrum\u201d (Alexandra Schwartz, The New Yorker<\/em>); or put another way, as one headline put it, two voices pierced Washington yesterday, \u201cI\u2019m terrified\u201d and \u201cI\u2019m innocent\u201d. Who do you believe?<\/strong><\/p>\n MH:\u00a0I definitely believe her. There was a piece in The Atlantic<\/em>from July 2018 that showed conclusively that there have been long term concerns about Kavanaugh\u2019s 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.<\/p>\n AJ: You watched both Ford\u2019s testimony and Kavanaugh\u2019s rebuttal\u2014what moments most stood out for you in yesterday\u2019s events?\u00a0<\/strong><\/p>\n For Kavanaugh, his ridiculous retort back to Klobuchar about blacking out (\u201cNo, have you?\u201d) and for Ford I think all of it, especially the fact that we know she told therapists about this years before.<\/p>\n AJ: What might happen if the FBI decides there\u2019s not enough evidence one way or another or if it provides some support for Ford\u2019s account?<\/strong><\/p>\n MH: I can\u2019t really guess either way.\u00a0That\u2019s up to the Senate!<\/p>\n AJ: Can you see any way forward that won\u2019t 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?<\/strong><\/p>\n Well, I grew up in a Republican family, believe it or not \u2026 But let\u2019s be clear, this was put on by the Federalist Society\u2014as was Gorsuch\u2014and Trump said publicly during his campaign he\u2019d 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\u2019t 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\u2019t think Grassley or McConnell for one second care about the issue of fairness to women.<\/p>\n <\/p>\n <\/a>[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\u00a0<\/em>(2012).<\/p>\n <\/a>[2] Sean M. Theriault (Associate Professor of Government, University of Texas), The Gingrich Senators: The Roots of Partisan Warfare in Congress\u00a0<\/em>(2013).<\/p>\n