Senate Republicans are neck-deep in political hypocrisy as they move toward confirmation hearings for Supreme Court nominee Brett Kavanaugh without a shred of bipartisanship or principle. With Republicans having lost any capacity for shame, the Republicans' prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama's last two Supreme Court nominations.
Starting with Grassley, the Judiciary Committee chairman is pressing for Kavanaugh's confirmation hearing to be held in September well before the George W. Bush Presidential Library can provide even incomplete records of Kavanaugh's five years in the Bush White House. Now consider what Grassley had to say in regard to Elena Kagan's nomination to the Supreme Court on the Senate floor on June 15, 2010, as the committee was waiting for the Clinton Library to provide records about her years as a White House aide.
Grassley, then in his thirtieth year as U.S. senator from Iowa, began his remarks by telling his colleagues that he had "always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees [emphasis added]." For the Senate to fulfill its constitutional responsibility, Grassley elaborated, "we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice."
Republicans, then in a 59-41 minority in the Senate, fully explored the complete records on Kagan's work in the White House as domestic policy adviser, focusing on such issues as welfare reform, gun rights, and abortion. Grassley was one of 36 Republicans, along with the then-minority leader McConnell, who sized up Kagan based on that record as too liberal and voted against her confirmation, along with one Democrat.
Democrats today want to examine all of Kavanaugh's work in the White House, including his three years as Bush's staff secretary that he himself describes as his "most formative" pre-judicial experience. They want to see the records to question Kavanaugh on the witness stand and then to use that evidence to try to substantiate, for any of the 51 Republicans willing to listen, their belief that Kavanaugh is too conservative and too partisan for a lifetime seat on the Supreme Court.
Grassley started this contretemps by leaving Democrats behind as he asked the Bush library only for documents from Kavanaugh's two years in the White House counsel's office. All 10 Judiciary Committee Democrats submitted a separate letter last week asking for all of Kavanaugh's records, but Grassley dug in his heels. With the first batch of documents received from the National Archives, the Democratic leader Chuck Schumer of New York complained about the lack of transparency. "We don't know what they've held back and why," Schumer remarked.
Grassley's full-speed-ahead approach is tied to the insistence by McConnell and other Republicans that Kavanaugh's confirmation needs to be completed in time for him to take the bench when the Supreme Court opens its 2018 term on Oct. 1, the traditional first Monday in October. The Republicans' concern about the need for a full nine-justice Court is laughably disingenuous after McConnell left the Court with a fourteen-month vacancy by refusing to consider Obama's nomination of federal appeals court judge Merrick Garland in 2016.
McConnell now says he is willing to work on Kavanaugh's confirmation with Democrats on a bipartisan basis. The Senate's longest-serving Republican, Utah's Orrin Hatch, added to the comic relief last week by denouncing what he called Democrats' "dumbass" partisanship on Kavanaugh's nomination. "I'm tired of partisanship and frankly we didn't treat their candidates for these positions the way they're treating ours," Hatch said in a stakeout by reporters. The record, of course, is to the contrary: Republicans all but shut down any consideration of Obama's nominees for the federal bench in his final year in office.
The liberal advocacy group People for the American Way aptly sized up the GOP's strategy in a statement by executive vice president Marge Baker. Republicans "are far more interested in rubber-stamping Donald Trump's nominees than in adequate vetting," Baker said. She challenged four Republican senators by name — Alaska's Lisa Murkowski, Arizona's Jeff Flake, Maine's Susan Collins, and Tennessee's Bob Corker — by asking whether they would "stand for the institutional integrity of the Senate." Stage direction: they do not move.
Meanwhile, Kavanaugh's outside supporters are competing with the Senate Republicans for first place in disingenuousness. A television ad being run by the conservative Judicial Crisis Network says Kavanaugh "has earned respect from both sides of the aisle." It also includes a snippet from Kavanaugh's White House appearance, where he promised to keep "an open mind on every case." Lest any viewer be misled, however, the TV ad also shows what Kavanaugh's supporters are actually thinking: "a grand slam for conservatives."
More than Neil Gorsuch's confirmation to succeed the late Antonin Scalia, Kavanaugh's nomination to succeed Anthony M. Kennedy could change the Supreme Court's balance of power for at least a decade or longer. "A solid conservative majority," Miguel Estrada promised to a Federalist Society luncheon last month. With so much at stake, Grassley's words eight years ago are well worth recalling. "We need to be certain," Grassley said then, "that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench."
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