By the end of this month, DC Circuit Court of Appeals Judge Brett Kavanaugh is going to be Supreme Court Justice Brett Kavanaugh. Senate Democrats are not happy about this fact and they did everything they could to stop Judge Kavanaugh’s confirmation process this week.
But Judge Kavanaugh is so well qualified (he received the American Bar Association’s top for the Court) and he has such a clear track record of judicial independence (he ruled against the Bush administration 8 times in the first two years after President Bush appointed him to the DC Circuit) that desperate Democrats had little real ammunition. So, they made stuff up.
In her opening statement, ranking member of the Senate Judiciary Committee Sen. Dianne Feinstein (D-CA) claimed that “deaths from illegal abortions in this country ran between 200,000 and 1.2 million” a year. But that is just false. According to the Guttmacher Institute, which is where Feinstein claimed she got her facts, there were under 200 deaths from illegal abortions in 1965. The 1.2 million number was the total number of illegal abortions. Quite a big difference.
Despite missing her abortion death number by a factor of 1000, Feinstein wasn’t done fumbling the truth. She then asserted that “hundreds” of school shootings had taken place with assault weapons. As The Washington Post later noted, this is completely false. Only a few school shootings have been conducted with so-called “assault weapons” – most have been committed using common shotguns, hunting rifles, and hand guns.
Neither of these policy points should have anything to do with how Judge Kavanaugh approaches the legal issues presented to a court, but Democrats could at least try and get their facts right when arguing that courts should be setting social policy for the nation.
Sen. Cory Booker (D-NJ) did not land any of the punches he threw at Kavanaugh either. His main line of attack stemmed from the Democrats unprecedented request for all documents Kavanaugh touched while serving as President Bush’s White House Staff Secretary. When President Obama nominated Justice Elena Kagan to the Court, Senate Republicans did request all documents from her time as Deputy Assistant to the President for Domestic Policy to President Clinton. And the Clinton Presidential Library did give those documents to the Senate.
But Republicans did not request any of the documents from Kagan’s time as President Obama’s Solicitor General. They knew those documents were privileged. Democrats, however, asked for all of Kavanaugh’s documents from President Bush’s White House and, pursuant to the Presidential Records Act, President Bush did assert executive privilege over many of those documents. President Bush’s appointed lawyer ended up marking some of the documents as “confidential” which meant senators could see them but the documents could not be made public.
Sen. Booker then claimed he had a confidential email from Judge Kavanaugh titled “racial profiling” and asked, “It seems that you are O.K. with using race to single out some Americans for extra security measures because they look different, but you’re not O.K. with using race to help promote diversity.”
But when President Bush’s lawyer later said the Judiciary Committee could make that email public, it turned out that Judge Kavanaugh had been arguing against using racial profiling against Muslims in the wake of 9/11. Turns out Kavanaugh was against using race to single out some Americans all along!
Sen. Kamala Harris (D-CA) also played a little game of hide the ball, asking Kavanaugh if he had ever had a conversation about Special Counsel Robert Mueller’s investigation with anybody at the law firm of Kasowitz Benson & Torres. When Kavanaugh admitted he did know everyone at the firm and asked her to identify which specific lawyer she was talking about, Harris declined, demanding, “I'm asking you a very direct question. Yes or no?” Kavanaugh then admitted he couldn’t answer since he didn’t know everyone at the firm.
Harris later told reporters that “I have good reason to believe there was a conversation,” and that, “information that I’ve received is reliable and I asked him a clear question and he couldn’t give a clear answer.” But Harris then completely failed to provide any such information or evidence. She had nothing all along.
Why would Democrats go through such embarrassing lengths to stop Kavanaugh?
Because too many judges have become far too willing to interpret the law based on their policy preferences, not what the law actually says. We need judges that respect the founding principles of federalism and separation of powers. Because if judges were to rediscover these principles, then the Supreme Court would not be as powerful as it is today, and out nation would be less divisive.
Judge Kavanaugh has a proven track record of upholding these principles and that is why he will soon be Justice Kavanaugh.