Judiciary Committee chairman Senator Chuck Grassley (R-IA) walks through reporters after a meeting with Senate Majority Leader Senator Mitch McConnell (R-KY) about the Judge Brett Kavanaugh nomination on Capitol Hill September 28, 2018, in Washington, D.C. (Brendan Smialowski/AFP/Getty Images)
While it is probably accurate to say that politics have always played a role in the Senate’s confirmation process for the Supreme Court, the current extreme polarized partisanship — some have called it “tribal” — on display in the Senate Judiciary Committee this past week is alarming.
The actions taken last year to destroy the effectiveness of the filibuster for Supreme Court nominations, meant that President Trump did not have to consider the views of the minority party in the Senate in making his selection — no consultation was necessary or undertaken.
Without the filibuster as a counter-weight against totally majority-driven procedures, Chairman Grassley (R-IA) and his majority were able to ignore fundamental demands. The minority was helpless to insist that all the necessary documents be produced to the committee.
The minority was powerless to demand that charges of sexual misconduct against the nominee by three separate accusers be fully investigated.
The minority was unable to require even that the committee subpoena the one eye-witness that Dr. Christine Blasey Ford testified was in the room at the time of the attempted rape.
On the vote to favorably report Judge Brett Kavanaugh’s nomination to the full Senate, the parties lined up with all eleven Republicans voting in favor and all ten Democrats voting no.
Republican senator Jeff Flake (R-AZ) and Democratic Senator Chris Coons (D-DE) should be credited with some degree of bipartisanship for propelling the committee over the very low bar of agreeing to permit the F.B.I. to investigate an attempted rape accusation against a nominee to sit on the Supreme Court of the United States. However, that outcome did little to reduce the residue of anger and recrimination left behind by these toxic hearings.
I must admit it is hard for me to imagine how any fair-minded person, let alone any U.S. senator, could fail to believe the direct, detailed, dramatic, and heart-wrenching testimony of Dr. Ford. No Republican senator on the committee is willing to say that her testimony is not credible. Yet, their vote to support the nominee, clearly implies that they did not believe her when she responded to a question asked by Senator Dick Durbin (D-IL) about her degree of certainty that it was Brett Kavanaugh who assaulted her. She answered immediately and firmly, “100 percent.”
Somebody is lying, either Dr. Ford or Judge Kavanaugh. It is inescapable that you cannot vote to confirm Kavanaugh unless you believe Ford is lying when she expresses 100 percent certainty that it was Kavanaugh who attempted to rape her or unless you believe that such behavior just isn’t relevant.
But for me, the question of the fitness of this nominee to serve on the court doesn’t even get that far. Fundamental to Senate confirmation is the standard of competence, integrity, and judicial temperament.
Brett Kavanaugh’s temperament was on full display in his testimony this week. He was angry, arrogant, and rude in his interactions particularly with Democratic senators. But, his own words, written himself, presumably well-considered lay bare an aggressively and extreme partisan temperament unsuited to the highest court in the land.
Judge Kavanaugh proclaimed that, “… this whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”
The nominee was probably right when he called the process a “national disgrace.” I believe that no one who watched this past week, no matter what their predisposition, can feel very hopeful about what has happened to the Senate’s judicial confirmation process.
Former Majority Leader George Mitchell (D-ME), for whom I worked, observed this weekend, “Many Americans are discouraged at the political dysfunction… The pain and anguish of the events of the past week hang heavy over our society.”
Kavanaugh went on to assert that it was Democrats who had “sowed the wind, for decades to come.” He added he feared “the whole country will reap the whirlwind.”
We will now see what the F.B.I. will bring to the table. But, this nominee is so severely damaged by his display of extreme and bitter partisanship and by the credible charges against him, that it is likely those who vote to confirm the nominee who will “reap the whirlwind.”
Richard A. Arenberg is a Visiting Professor of the Practice of Political Science and a Senior Fellow at the Watson Institute for International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg is the author of the forthcoming "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress." He was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.