Before last week’s Supreme Court confirmation hearings get sucked down the Trump-era news cycle memory hole, intellectually honest conservatives should cop to something: Brett Kavanaugh didn’t do so hot.
Don’t get me wrong, barring some stunning revelation, he will be confirmed—and he might even go on to be a terrific Supreme Court Justice. Were I a member of the U.S. Senate (be grateful I am not), I would vote to confirm him.
But let’s not pretend his performance was particularly spectacular. Questions were raised about past testimony he gave to the Senate—some clearly offered without context, but others that suggested he was “less than forthcoming” about the role he played in helping confirm a controversial Bush nominee back in 2006. Kavanaugh also seemed ill-prepared to forcefully rebut the predictable assertion that he was nominated because of his deference to presidential powers.
More than anything else, Kavanaugh was hampered by the secrecy of the process by which he is being considered. Democrats made fools of themselves by releasing “committee confidential” documents that allegedly would submarine Kavanaugh’s nomination. Ironically, at least one of these documents actually made Kavanaugh look good—which makes me believe that Kavanaugh would have benefitted by simply calling for more of his own record to be more public.
Personally, I don’t see his failure to do so, or any of the aforementioned trip-ups, as disqualifying. But let’s not pretend that Kavanaugh (or his team) handled any of it deftly either.
Indeed, I can’t think of a time when Kavanaugh issued a rejoinder that caused the conservative hair on the back of my neck to stand up. He merely survived. In this game, you chalk that up as a win. But it wasn’t a fun game to watch. He was unflappable, sure. But he also played defense the entire time, and—eventually—that’s a loser’s game.
Kavanaugh was likely employing an intentional strategy that was designed to filibuster, run out the clock, and bore us to death. In football, this is called a “prevent defense,” and the joke is that it only prevents you from winning. Not surprisingly, in terms of public approval, his numbers started out low—and didn't improve. In other words, the best Kavanaugh and his supporters (myself among them) can say is that he didn’t diminish himself. Yay?
This “do no harm” strategy may be a byproduct of the political times in which we live. Supreme Court nomination fights are now zero sum games. But even in that ruthless climate, some people have the ability to turn on the charm. Consider Neil Gorsuch’s confirmation hearings. I’m serious, go back and watch Gorsuch’s highlight reel. He was friendly, likable, energetic, smooth, decisive, and on offense. Gorsuch’s polling numbers reflected this.
Public opinion isn’t everything, of course. But when a mere 37 percent of the public wants you confirmed to the Court—even after being introduced to them (this includes all the positive ads and talk of carpool rides and coaching girls basketball)—it’s not exactly a great sign, for Kavanaugh, for future GOP nominees, and for the reputation of the Court itself. And if the pushback Chuck Grassley is receiving in Iowa is an representative of the nation, this could be a harbinger of things to come.
In fairness, Gorsuch had it slightly easier. He was only seeking to replace another conservative (Antonin Scalia), but Kavanaugh has the potential to swing the Court to the right, which helps explain the added hostility toward him.
I have already written about the histrionics employed by Sens. Cory Booker and Kamala Harris. Since then, we have seen deceptively edited tweets about answers he gave, bizarre conspiracies about his past conduct, and utterly grotesque attempts to both over-dramatize his record and influence the votes of on-the-fence Senators.
These attempts to derail Kavanaugh’s nomination may, in the end, actually propel him forward. Certainly, Senator Susan Collins (R-ME), the target of abortion rights groups, seems more emboldened to vote yes because of it.
But Kavanaugh hasn’t made it demonstrably easier for her. He represents a solidly conservative type of jurisprudence that Collins has supported in the past. But he brought with him something that Mitch McConnell worried would complicate matters: a “lengthy paper trail.”
Put aside his years on the bench, Kavanaugh’s tenure in the George W. Bush administration as White House counsel and staff secretary has generated hundreds of thousands of documents (including the aforementioned controversy about his shepherding of a controversial judicial nominee) to be cherry picked through (the ones that were released, that is; the rest provided fodder for Democrats to complain about a lack of transparency and accountability).
One lesson might be that too much experience (especially the kind that is perceived as more political and partisan than your prototypical judge) is a double-edged sword. That may be a lesson to consider when considering future nominees. Amy Coney Barrett—my favorite for the nomination—would have had the opposite problem. But at least she would have been charismatic.
Ultimately, none of this may matter. Kavanaugh seems likely to be confirmed despite of his paper trail and uninspiring hearing. And in this “Just win, baby!” era, Trump fans will likely see this criticism as “concern trolling.”
But if Republicans are smart, they won’t see Kavanaugh’s likely confirmation as proof that they have finally cracked the code. A third Trump nomination likely would be even trickier. Lessons can and should be learned from the second nomination. Because if you thought the fight over Kavanaugh was intense, just imagine what the brutal fight that will take place if Trump gets a shot at a third Supreme Court Justice.