September, 2018
Washington -- This week hearings begin on the nomination of Brett Kavanaugh for the Supreme Court. Conventional wisdom suggests that there will be party line votes and he will be confirmed.
We're not there, yet, for two reasons.
First, Kavanaugh has a troubled background, having been a partisan leaker of substantive grand jury information for the Office of Independent Counsel under Kenneth Starr. By conveniently moving between the OIC and a private law firm, he has avoided making sworn statements that he did not provide grand jury leaks to reporters. He may also have to overcome embarrassing information about his personal conduct and judgment. There is also the matter of some 100,000 documents that are being kept under wraps, not to mention his prominent role in turning the Starr investigation into salaciousness.
Second, the timing of the nomination may become more of an issue. The country is headed into a Constitutional crisis over executive powers. Confirming a justice whose views show little appreciation for the Madisonian checks and balances that restrain such powers may strike many voters as the wrong thing to do. That includes traditional conservative voters, who are looking for one or two Republican senators with sufficient backbone to call for a slowdown to assess what is at stake.
Hearings may bring out a better understanding that the "originalism" jurisprudence favored by Kavanaugh is hardly conservative. It has been responsible for much recent judicial activism, as it has been used to undermine stare decisis, fundamental to judicial restraint. As the conservative writer George Will has suggested, originalists have a lot of explaining to do when it comes to the 14th Amendment's equal protection clause, let alone other matters.
If Kavanaugh is to be stopped, it will likely be that voter sentiment will start to inform senators that he is the wrong man at the wrong time. One Constitutional crisis at a time, please, voters may well tell their senators. The country does not need a cheerleader who sees the president above the law while in office, while at the same time re-writing the meaning of equal protection clause so as to undo voters' ability to throw the rascal out.
There was a time, not so long ago, when prudent Republican senators would have intervened. John Chafee would be appalled at what a Kavanaugh appointment would do to his lifelong work for responsible environmental protection. Robert Stafford, after whom the federal student loan program is named, would think it utter nonsense that a nominee supported by the Federalist Society would countenance stripping states of consumer protection in the case of student loans. (That would be a good question for the hearings.) Nancy Kassebaum, who bolted from her party over the nomination of John Tower for Secretary of Defense, would be a voice of caution about moving too quickly on Kavanaugh.
If backbone is lacking among today's senators, whatever happened to old-fashioned leverage? A Nebraska citizen has publicly asked in a letter to an editor why the state's two Republican senators don't demand a more responsible trade policy to save their state's farmers as a condition of their support of Kavanaugh? It isn't as if there are not at least a dozen other potential nominees cleared for the nomination, without Kavanaugh's baggage. There is a clear precedent: Nebraska Senator Ed Zorinsky* broke with the Democratic Party in 1985 over the vote on the federal budget resolution. He used his leverage to cast the deciding (50-49) vote in favor of the Republican resolution after securing funding for a trade policy that would benefit Nebraska farmers.
May the Kavanaugh hearings explore all this, and more, with the hope that senators will put country and Constitution ahead of party.
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* Professor (and former USDA assistant secretary) Bruce Gardner recounts the Zorinsky move in his NBER chapter at http://www.nber.org/chapters/c8722:
"...[A]s the 1985 farm bill deliberations began...farm groups had refined their general support for export promotion to more concrete proposals, and U.S. wheat exports had declined still further while the EC’s grew. In this situation the administration’s desire to continue ad hoc export subsidies without binding legislation was no longer politically tenable.
"...In May 1985, the administration (represented by the Office of Management and Budget [OMB] and the USDA) and the Senate leadership (principally Dole and Senator Edward Zorinsky [D-Nebraska]) agreed to implement, under existing USDA authorities, an Export Enhancement Program.
"Politically, the EEP was given the breath of life by a conjunction of interests...: Senator Zorinsky’s strong desire, as the ranking Democrat on the agriculture committee and representative of Nebraska, for a substantial export subsidy program; [and] budget director David Stockman’s need for Democratic votes on key economic legislation....
"Stockman agreed that the administration would implement an export subsidy program, in exchange for Zorinsky’s vote on the budget resolution containing the Reagan administration’s fiscal proposals, with the subsidies to take the form of unwanted CCC surplus commodities with a zero budget score.
"The agreed-upon program committed $2 billion worth of CCC-owned commodities to be made available as a bonus to U.S. exporters to expand sales of U.S. agricultural commodities in targeted markets. The objectives stated were to increase U.S. farm exports and to encourage trading partners to begin serious negotiations on agricultural trade problems."
