As this story goes to press, it is uncertain whether Judge Kavanaugh will be confirmed to sit on the Supreme Court. But one thing is certain. The confirmation process itself is broken, and in desperate need of repair. Here are three recommendations. They may not necessarily fix the many problems manifested over the past few months, but they may at least moderate them.
First, the process needs a consensus among its participants on the meaning of judicial temperament. Everyone agrees that judicial temperament is a crucial qualification. No one agrees on what that temperament should be.
Following the testimony of Dr. Christine Blasey Ford, a different Judge Kavanaugh appeared than the one who had shown up at earlier sessions, and the one who had been interviewed on Fox. In those earlier appearances, the Judge was scholarly and lawyer-like. Some Republicans were disappointed by his blandness. After Dr. Ford testified, a different man appeared, one who cried, who raised his voice, and interrupted and lashed out at his interrogators. He was angry and emotional. In short, he acted the way an innocent man who has been accused of serial rape might be expected to behave.
For this, he was roundly criticized by Democrats, who argued that such emotional outbursts demonstrated a lack of judicial temperament.
Of course, this criticism would be valid if Judge Kavanaugh ever showed such emotion while hearing a case. But on the bench, he would be weighing charges and counter-charges between parties, not allegations involving himself or his family. Any judge would recuse himself from cases in which he had a personal interest.
Many observers trace the breakdown of civility in the confirmation process back to the hearings on Judge Robert Bork in 1987. When asked why he wanted to sit on the Supreme Court, Judge Bork answered that he had spent his professional career “in the intellectual pursuits of the law,” and that sitting as a Supreme Court Justice “would be an intellectual feast.”
For this, Judge Bork was roundly criticized by Democrats, who argued that such unemotional intellectualism demonstrated a lack of judicial temperament.
For example, former federal judge Shirley Hufstedler testified against him, calling his “quest for certitudes” a way to avoid “having to confront the grief and untidiness of the human condition.” She said that Judge Bork’s testimony showed “a lack of appreciation of what happens to real human beings.” A liberal columnist pointed out the absence of any reference by Judge Bork to “the concrete human realities” of the cases he would be judging. The columnist bemoaned the Judge’s apparent lack of interest in “the range of human experience.”
Judge Kavanaugh displayed the untidiness and range of the human condition in spades.
Democrats — or Republicans for that matter, when positions are reversed — can’t have it both ways. Do we want Supreme Court nominees to be dispassionate Mr. Spock’s, or do we want them to be all too human creatures who, like Judge Kavanaugh, cry out in pain and anger when they and their loved are attacked? We need to come to some sort of consensus on the meaning of judicial temperament, and then to apply it to nominees with consistency.
Second, the process needs agreed upon time periods. How far back in a nominee’s life is fair game for scrutiny? The microscopic examination of Judge Kavanaugh’s high school yearbook bordered on the absurd, as the players bickered over whether certain terms bandied about by teenagers referred to sexual activity or flatulence.
There must be a borderline beyond which the inquisitorial process does not go. There must be allowance for the fact that human beings are not born as mature and responsible adults. Instead, they reach that stage gradually, over many years. Some take longer than others, and some never really attain it. Nominees must be granted a chronological safe zone, within which their childish foolishness and excesses are chalked up to the uneven process of growing up. Within that zone, their pasts should be left alone.
Finally, the process needs to shed at least some of its blatant partisanship. No one expects Democrats and Republicans to work in complete harmony. Our system of government is best served when the two major parties compete with each other for public favor. But that competition has gotten out of hand. It has degenerated into religious warfare, with each side convinced that it represents Good locked in a Manichean struggle with Evil.
The best way to reduce partisanship is to eliminate the nuclear option. Until recently, the vote of 60 senators was required to close debate on a judicial nomination. So a determined minority could prevent a nomination from coming to a vote. Effectively, that meant that the majority party could not ram through a nomination without at least some support from the opposition party. In November 2013, the Democrats, in control of the Senate and the White House, used the nuclear option to eliminate the 60-senator rule for all executive branch nominations and judicial appointments other than the Supreme Court. That gave the Democrats the power to stop debate and confirm their nominees without any Republican support. In April 2017, after the Republicans had regained control of the Senate and the White House, they exacted their revenge by expanding the nuclear option to eliminate the 60-senator rule for Supreme Court nominees, clearing the way for the confirmation of Neil Gorsuch.
As matters now stand, the party with majority control of the Senate has no need to reach across the aisle to gain confirmation of a judicial nominee. It need only keep its own members in line.
Ironically, both Parties agree that the current system is shameful and embarrassing. They blame each other for having arrived at this sorry state. And they are both right, because both helped to create it. But ultimately, it doesn’t matter how we reached this point. All that matters is moving past it, and returning to the condition under which Democrats were motivated to attract at least some Republican support and Republicans were motivated to attract at least some Democratic support.
The advise and consent power of the Senate over Executive Branch nominees is an important element of our constitutional system of checks and balances. When the system works as it was meant to, it resembles a finely tuned watch. Right now, the watch is broken, and needs repair. Without remedial measures, that watch, and this nation, will lose more than just time.