Commentary: Kavanaugh hearings a primer into court’s path

The outcome will be no surprise, but watching the hearings sets the agenda for national debate.

  • By Doyle McManus Los Angeles Times (TNS)
  • Sunday, September 9, 2018 1:30am
  • OpinionCommentary

By Doyle McManus

Los Angeles Times

The Supreme Court confirmation hearings for Brett Kavanaugh began at least a three-day run on Tuesday, and just as detractors warned, it was the congressional version of kabuki drama: plenty of ritual but not much suspense.

Each side played its assigned role. Democrats demanded that the proceedings be suspended until the Senate Judiciary Committee had more documents about Kavanaugh’s political career. Republicans denounced the Democrats as obstructionists. Pink-clad protesters shrieked until they were led away. Sen. Chuck Grassley of Iowa, the dyspeptic chairman, lost his temper (as usual). Amid it all, Judge Kavanaugh sat silent and stone-faced, except for the occasional trace of a smile.

It was the kind of day that led Elena Kagan, when she was a law professor, to call judicial confirmations a “vapid and hollow charade.”

But Justice Kagan was only half right. This week’s hearings, like the entire confirmation process, are hollow: The outcome is in no doubt. The Senate will confirm Kavanaugh on party lines; the only question is how many endangered red-state Democrats will join the Republican majority.

But the debate along the way will still be well worth watching, not only on the substance of the issues but on the political fallout as well. If nothing else, we will get a fair idea about whether Republicans can effectively use Kavanaugh’s ascension to mobilize their voters in November, or whether Democrats will find that the new justice adds oxygen to the fire fueling their base instead.

And which of the many rising stars on the Senate committee, including at least four potential Democratic presidential candidates, will succeed at using their turn on the hearings’ national stage to audition for higher office? (Tip sheet: Amy Klobuchar of Minnesota, Cory Booker of New Jersey and Kamala Harris of California made good use of their time on Tuesday, but keep an eye on two brainy dark horses, Richard Blumenthal of Connecticut and Sheldon Whitehouse of Rhode Island.)

The substantive stakes are high. If — when — confirmed, Kavanaugh will replace Justice Anthony Kennedy, the court’s unpredictable swing vote. Kavanaugh is a far more reliable conservative. He will push the court well to the right. The hearings should prepare Americans for significant changes in important legal questions.

Abortion: Last fall, Kavanaugh praised one of his mentors, the late Chief Justice William H. Rehnquist, for his dissent against Roe vs. Wade. Rehnquist believed that court decisions “had to be rooted in the traditions and conscience of our people,” Kavanaugh said, and “given the prevalence of abortion regulations … (Rehnquist) could not reach such a conclusion about abortion.” So does Kavanaugh agree that Roe was a bad decision — even though he has also reportedly called it “settled law”?

Guns: In 2011, Kavanaugh, as an appeals court judge, voted to strike down a District of Columbia law banning military-style semiautomatic rifles because, he said, such guns “have not traditionally been banned.” The majority on the U.S. Court of Appeals for the District of Columbia Circuit disagreed with his ruling and his reasoning, and so did nine other appeals courts.

Regulation: This one is wonky but important: Since 1984, under a decision involving the Chevron oil company, courts have generally allowed regulatory agencies to determine the bounds of their powers as long as their interpretations are reasonable. Kavanaugh doesn’t like it. “The Chevron doctrine encourages agency aggressiveness on a large scale,” he said in a speech last year. Democrats fear he would turn the courts into a tool for wholesale deregulation. (“This is what corporate capture of the courts looks like,” Whitehouse said on Tuesday.)

Presidential immunity: After working for the independent counsel who investigated President Clinton, Kavanaugh concluded that no president should be subjected to criminal prosecution while in office. He has even questioned whether a president can be investigated at all, except by Congress under its impeachment power. He may not believe a prosecutor has the power to compel a president to hand over evidence in a criminal inquiry — as the Supreme Court unanimously decided Richard Nixon had to do during the Watergate inquiry in 1974.

Democratic and some Republican senators will struggle to force Kavanaugh to reveal his legal thinking on these issues. The nominee will claim that he shouldn’t be asked such questions, but a skilled questioner can sometimes elicit useful clues. There won’t be a Perry Mason moment, but viewers who pay attention will get a preview of where the Supreme Court is headed.

Last week, Variety called the hearings “must-see TV.” I might not go that far, but even though we know how the plot turns out, the drama is worth watching. There’s nothing vapid about the process at all.

Doyle McManus is a contributing writer to the Los Angeles Times’ Opinion pages.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

Initiative promoter Tim Eyman takes a selfie photo before the start of a session of Thurston County Superior Court, Wednesday, Feb. 10, 2021, in Olympia, Wash. Eyman, who ran initiative campaigns across Washington for decades, will no longer be allowed to have any financial control over political committees, under a ruling from Superior Court Judge James Dixon Wednesday that blasted Eyman for using donor's contributions to line his own pocket. Eyman was also told to pay more than $2.5 million in penalties. (AP Photo/Ted S. Warren)
Editorial: Initiative fee increase protects process, taxpayers

Bumped up to $156 from $5, the increase may discourage attempts to game the initiative process.

toon
Editorial cartoons for Thursday, March 28

A sketchy look at the news of the day.… Continue reading

Washington state senators and representatives along with Governor Inslee and FTA Administrator Nuria Fernandez break ground at the Swift Orange Line on Tuesday, April 19, 2022 in Lynnwood, Washington. (Olivia Vanni / The Herald)
Editorial: Community Transit making most of Link’s arrival

The Lynnwood light rail station will allow the transit agency to improve routes and frequency of buses.

Protecting forests and prevent another landslide like Oso

Thank you for the powerful and heartbreaking article about the Oso landslide… Continue reading

Boeing’s downfall started when engineers demoted

Boeing used to be run by engineers who made money to build… Continue reading

Learn swimming safety to protect kids at beach, pool

Don’t forget to dive into water safety before hitting the pool or… Continue reading

An image of Everett Mayor Cassie Franklin is reflected in a storefront window during the State of the City Address on Thursday, March 21, 2024, at thee Everett Mall in Everett, Washington. (Ryan Berry / The Herald)
Editorial: State of city address makes case for Everett’s future

Mayor Franklin outlines challenges and responses as the city approaches significant decisions.

FILE - The massive mudslide that killed 43 people in the community of Oso, Wash., is viewed from the air on March 24, 2014. (AP Photo/Ted S. Warren, File)
Editorial: Mapping landslide risks honors those lost in Oso

Efforts continue in the state to map areas prone to landslides and prevent losses of life and property.

Comment: Why shootings have decreased but gun deaths haven’t

High-capacity magazines and ‘Glock switches’ that allow automatic fire have increased lethality.

toon
Editorial cartoons for Wednesday, March 27

A sketchy look at the news of the day.… Continue reading

Burke: ‘Why not write about Biden, for once?’ Don’t mind if I do.

They asked; I’ll oblige. Let’s consider what the president has accomplished since the 2020 election.

Comment: Catherine missed chance to dispel shame of cancer

She wasn’t obligated to do so, but she might have used her diagnosis to educate a sympathetic public.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.