Below is my column in The Hill newspaper that looks beyond this immediate controversy over the Kavanaugh nomination toward three basic reforms of the confirmation process. With the FBI investigation interviewing witnesses on the first two allegations of sexual assault, it is not clear what new information may surface at the end of the week. In the interim, it would be useful to discuss the now obvious failure of our confirmation process. I have been a long critic of the process, but the Kavanaugh confirmation process has magnified these flaws to a grotesque degree.
Notably, Kavanaugh now has been given the SNL treatment with a performance by Matt Damon that is that type of comical portrayal that hits hard in public controversy.
Here is the column:
When Judge Brett Kavanaugh walked before the Senate Judiciary Committee on Thursday to answer allegations that he is a rapist, few knew what to expect. Predictions ranged from stony denials to a withdrawal of his nomination after the compelling testimony of his accuser, Christine Blasey Ford. Most expected a repeat of Kavanaugh’s dry, rather stiff performance during his confirmation hearings.
Instead, Kavanaugh seemed to walk into the committee room like Howard Beale in the movie “Network,” declaring on national television that “I am mad as hell and I’m not going to take this anymore.”
It was riveting and gut-wrenching to watch as Kavanaugh lashed out at Democratic senators who announced beforehand that they believed his accuser; some referred to him as “evil,” a liar. He correctly described the confirmation process as “a national disgrace” and a “circus.” Undeterred, senators proceeded to fulfill that stereotype with cringe-worthy questions, as when Sen. Richard Blumenthal (D-Conn.) demanded to know if Kavanaugh “believed Anita Hill” in her testimony against Clarence Thomas some 27 years ago.
Sen. Sheldon Whitehouse (D-R.I.) explored such deep jurisprudential issues as the meaning and correct pronunciation of the word “boofed’ or “buffed,” which Kavanaugh explained was a 16-year-old’s term for flatulence. Whitehouse explored every notation in Kavanaugh’s yearbook, including the long-standing debate over the meaning of “Devil’s Triangle,” which Kavanaugh claims to be the same as the drinking game “Quarters.” We will likely have to wait for the next nominee for some of us to learn what Quarters means. In the meantime, many have suggested that Kavanaugh knowingly lied about the commonly understood meaning of these terms as sexual in nature.
In barely controlled rage, Kavanaugh appeared not only innocent to many but distinctly human. Democratic senators appeared to be thrown back on their heels by a man who decried what he said was their orchestrated campaign to destroy his reputation and his family. Gone was the stiff, robotic nominee who fit Dorothy Parker’s description ofKatharine Hepburn as running “the whole gamut of emotions—from A to B.”
Of course, for people who believe Ford, the anger likely reaffirmed their view of the nominee as a closet sexual predator. However, they were not the audience he needed to reach. For Republicans, Kavanaugh succeeded in making them mad as he fought back genuine tears in recounting what this campaign has done to him and his family. Those voters are now “scoring” this vote as a test for senators like Lisa Murkowski (R-Alaska), Susan Collins (R-Maine), Joe Manchin (D-W.Va.) and Jeff Flake (R-Ariz.). In doing so, Kavanaugh could well have saved his nomination from likely defeat.
Democrats like Sen. Cory Booker of New Jersey repeatedly referred to Ford bravely putting forward “her truth.” There is, of course, only one truth — and the hearing did not reveal it. As Howard Beale observed to viewers in “Network,” the hearing confirmed that “man, you’re never going to get any truth from us.”
That is what we need to address long after the conclusion of this confirmation — reforming the process. On this point, Kavanaugh is only partially correct: His confirmation was a disgrace long before this controversy arose.
Confirmation hearings are a modern invention. For much of our history, confirmations were debated and voted directly on the Senate floor. Even after 1868, when nominations were referred to the Senate Judiciary Committee, the nominee did not actually appear, as opposed to witnesses, and deliberations were held in private. The nomination of Louis Brandeis — opposed by some for his liberal views, by others for his Jewish heritage — broke from that tradition with 19 days of public hearings. It was with the nomination of Harlan Stone in 1925 that a nominee was first called to appear before the committee. Even after 1925, most hearings were limited and perfunctory.
As the importance of the Supreme Court grew with divisive questions of racial and gender equality, confirmation hearings became more of a battleground and nominees more like political proxies. In what became known as the “Ginsburg Rule,” nominees began to refuse to answer questions on how they might rule on cases that came before them. Ginsburg’s insistence on “no hints, no forecasts, no
Each confirmation has resulted in less and less substantive discussion of judicial philosophy and constitutional interpretation. This race to the bottom reached an all-time low with Kavanaugh, whose confirmation hearing never moved beyond judicial platitudes. At the same time, an unprecedented amount of information on Kavanaugh’s background was withheld.
Our confirmation process has finally come to perfectly match our politics: raw, brutal and deceitful. If we want change, we should focus on three areas: decency, transparency and honesty.
First and foremost, there must be basic decency afforded to nominees by the judiciary committee. The withholding of the allegations against Kavanaugh until shortly before his vote was indeed a disgrace; no matter how hard Democrats tried to explain the timing, few people viewed it as anything other than an orchestrated hit-job on a nominee. Ford’s allegations are indeed serious, but that only makes the opportunistic use of them all the more troubling.
In cases where allegations are knowingly withheld, there should be a strong presumption against their consideration. To guarantee that serious allegations like Ford’s are considered, the committee should follow an informal rule to keep nominations open at the committee level for a minimum of 60 days before moving the matter to the Senate floor. (The average time is around 70 days but some, like the nomination of Chief Justice John Roberts, went through in just 19 days).
There also must be guarantees of transparency by the executive branch. The price of a Supreme Court nomination is the review of every aspect of a nominee’s professional life. Democrats were right in condemning the categorical withholding of Kavanaugh’s record from the period when he was White House secretary, as well as the unprecedented use of “Committee Confidential” markings to restrict documents turned over to the committee. If a president wants to nominee a former executive branch official, the nomination must come with disclosure of the full record.
Finally, there must be honesty by the nominee. The committee should do away with the Ginsburg Rule and only accept a refusal to answer questions on specific pending cases — not questions about how a nominee interprets the Constitution on general questions like privacy or presidential powers. A nominee should be honest on his or her jurisprudential views and interpretive approach. Otherwise, the entire exercise of a confirmation hearing is little more than political theater.
There is hope that Kavanaugh’s “Network” moment may have awakened the public to the need for a new approach to confirmations. If so, something good could come from this. Howard Beale said in the movie, “This is not a psychotic breakdown. It’s a cleansing moment of clarity.” Let’s hope so.