If Chief Justice John Roberts watched Brett Kavanaugh’s confirmation hearings he was likely shuddering.
He has been a critic of the politicization of the modern-day confirmation process.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it would be viewed in those terms,” Roberts said in a February 2016 speech. “And that’s just not how – we don’t work as Democrats or Republicans. I think it’s a very unfortunate perception the public might get from the confirmation process.”
Ten days after those comments, Justice Antonin Scalia suddenly died and Roberts did not substantively bring up the subject again. Merrick Garland was nominated by President Barack Obama and was refused a hearing. Neil Gorsuch was confirmed in 2017, Anthony Kennedy retired and Kavanaugh was nominated.
Kavanaugh’s hearings have been largely about politics.
News releases fly every time a controversial issue arises from public interest groups and those affiliated with the parties. In fact, the White House sends out advisories on a regular basis called “Setting the Record Straight.”
On the far end of the dais sits Sen. Cory Booker, D-New Jersey, who some people believe might be in play for president sooner rather than later. Thursday, Booker drew attention by saying he was releasing “committee confidential” records to the public, although those records had apparently been approved for public release in the wee hours Thursday morning.
“I am going to release the email about racial profiling. And I understand that the penalty comes with potential ousting from the Senate. And if Sen. (John) Cornyn believes that I have violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now,” Booker declared.
“This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment,” he added later.
That prompted Republican Sen. Thom Tillis of North Carolina to later suggest that Booker had gone too far.
“Certainly in the six hours between the time that email hit your email box and the theatrics that happened in this chamber today you could have actually found out that you didn’t have to be Spartacus, you didn’t have to go interact with civil disobedience, you got what you wanted,” Tillis said.
Meanwhile, President Donald Trump has not been far offstage.
On the first day he tweeted: “The Brett Kavanaugh hearings for the future Justice of the Supreme Court are truly a display of how mean, angry, and despicable the other side is.”
Democrats also keep bringing up presidential power because they believe that issues related to current investigations by special counsel Robert Mueller or others may end up before the Supreme Court.
They’ve tried to get Kavanaugh to pledge to recuse if that happens. And they’ve pushed him on whether a president can be indicted while in office. Or subpoenaed. Or whether he can pardon himself.
On Thursday, Democratic Sen. Dick Durbin of Illinois asked Kavanaugh to talk about his views of presidential power in the “age of Trump.”
Kavanaugh has at every turn tried to avoid directly answering such questions, repeatedly saying he wants to stay “three ZIP codes” away from politics.
Republican Sen. Orrin Hatch of Utah said he thought the hearings – replete with protesters almost every hour – were turning into a “circus.”
Justice Ruth Bader Ginsburg often says how Hatch was one of her big supporters when she was confirmed 96-3 in 1993. And Ginsburg had been a lawyer for the American Civil Liberties Union.
But in 2017 she said, “Now he wouldn’t touch me with a 10-foot pole.”
“I wish there were a way I could wave a magic wand and put it back when people were respectful of each other and the Congress was working for the good of the country and not just along party lines,” Ginsburg said at Stanford Law School.
“Someday there will be great people,” she said, “great elected representatives who will say, ‘Enough of this nonsense. Let’s be the kind of legislature the United States should have.’ I hope that day will come when I’m still alive.”