Columns, Congress, Constitutional Law, Politics

Kavanaugh’s “Mad As Hell” Moment Should Not Pass Without Serious Reforms Of The Confirmation Process

UnknownBelow 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 previews” gradually became no real answers. Nominees now routinely refuse to answer basic questions on their approach to interpretive questions of privacy, executive powers or other major areas of constitutional law. Instead, they repeat largely empty mantras of “respecting precedent” and remaining “open-minded” as jurists.

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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

TAGS SHELDON WHITEHOUSE LISA MURKOWSKI SUSAN COLLINS

109 thoughts on “Kavanaugh’s “Mad As Hell” Moment Should Not Pass Without Serious Reforms Of The Confirmation Process”

  1. I agree with the proposed changes.

    The one part that I do question relates to holding the process open at the committee level for 60 days. I relate this to the court’s calendar.

    Most justices announce their retirements at the end of the court’s session, which usually results in these announcements coming in July. The consideration process seems to only get started at the time a retirement announcement is made.

    Since Kavanaugh’s nomination came in August, we are now within the 60-day period. The Supreme Court has opened its current session this week, and there are an even number of justices, leading to the possibility of many 4-4 decisions.

    If the Supreme Court is supposed to be the ultimate decider of laws in this country, the idea of allowing a tie to occur seems like something that should be avoided at almost all costs.

    I would be willing to reconsider this opinion if the Supreme Court stops being used for political purposes and gets to making decisions based upon what the Constitution says. I would even go so far as suggest that any law that is specifically opposite of what is allowed by a strict interpretation of the Constitution should be subject to reversal, but I know THAT would never happen. I’m also not asking for a nomination to the Supreme Court. After all, it is a principle of the Supreme Court that they are allowed to reverse their earlier actions (Plessy vs. Ferguson; Marbury vs. Madison).

    Unfortunately, as long as the Supreme Court is granted the status of being able to have the final decision on what is legal and what is not, it will always be used to political ends.

  3. We once had a President who was known as Give Em Hell Harry. Y’all probably know who I am talking about. If this Judge K guy quits the bench and runs for office in some state then I will support him. I support his confirmation to the Supreme Court. Three so called moderate Republicans need to vote for him. If they don’t then I will support their opponents in their next primary. Perhaps send some dark money.

  4. From DemocracyNow, earlier today:

    “The FBI is investigating Supreme Court nominee Brett Kavanaugh after Dr. Christine Blasey Ford testified last week that he attempted to rape her in 1982. But Democrats say the FBI’s probe is too limited, and critics claim that Kavanaugh has repeatedly committed perjury by lying during his testimony about his drinking habits, the content of his yearbook and a spate of other topics.

    “We speak with Lisa Graves, co-director of Documented, which investigates corporate influence on democracy. She is the former chief counsel for nominations for the ranking member of the Senate Judiciary Committee and was deputy assistant attorney general in the Department of Justice. Her recent article for Slate is titled “I Wrote Some of the Stolen Memos That Brett Kavanaugh Lied to the Senate About.””

    https://www.democracynow.org/2018/10/1/ex_senate_aide_judge_brett_kavanaugh

    From the transcript:

    “But that’s not the only time in which Brett Kavanaugh lied. He, I believe, lied in his earlier testimony, in 2004, in 2006 and earlier this month, about a number of matters, including his role in receiving stolen confidential information, information that was stolen from the United States Senate about judicial nominations, and lying about his role in those judicial nominations. I think that this man, Brett Kavanaugh, tells lies big and small. He is unfit for the bench. He is certainly unfit for the United States Supreme Court. And I’ve called for him to be impeached—not promoted, but actually impeached.”

    2. He never lied about receiving stolen memos. As I told you on another post, with links, the “spying” memo that he forwarded was an email indicating that a mole at the DNC had informed them of a big Soros slush fund going up against them.

      There were no stolen documents in the email. This is the same as people commenting on the many leaks coming out of the Trump administration. You know, those hero leakers that the media adores so much.

      The email never mentioned stolen or hacked documents, contained no stolen property, and had nothing to do with it.

      This is how these lies grow legs. People don’t do the research. They don’t read the email. They just breathlessly repeat that Kavanaguh lied before under oath. Only…he didn’t. Soon, it becomes an urban legend, just like you can’t convince people that Sarah Palin never said she could see Russia from her house. That was actually an SNL skit.

      1. “This is how these lies grow legs. People don’t do the research.” So says Karen.

        Yep, lies about how the legacy system really works — and what alcohol blackouts are.

        Karen — just a few days ago — reported that BK wouldn’t have been ambulatory if he had blacked out.

        Yep, do your research, Karen. Educate yourself and stop spouting the FOX party line.

        1. Anonymous – Kavanaugh would have been ambulatory in a blackout, but so would Blasey. Tit for tat. The problem is neither would remember it today or when they sobered up.

  5. This is a biased, incoherent and hysterical representation by Prof. Turley.

    Judge Kavanaugh is a steadfast and decisive leader who displayed appropriate determination

    to defeat the lies and advance the truth.

    His demeanor cannot be described as “mad as hell” but appropriately resolute.

  6. Kavanaugh absolutely had every right to present himself in the manner and temperament he did. He was not a JUDGE in this instance, he was the accused. And as a man who has sat as a JUDGE, he would never have tolerated the malicious intent of Democrats outrightly admitting to Ms. Ford that they BELIEVED HER BEFORE she had testified. Never did one, NOT ONE DEMOCRAT, have the decency to use “alledged” before any comment on this topic. Kavanaugh was tried and convicted by the Democrats BEFORE anyone said a word of TESTIMONY. Then there is the issue of holding a letter alleging a felony for six weeks, bringing it out only when all else failed. What if the letter said Ms. Ford suspected that Kavanaugh was the suspected murderer of her brother 36 years ago and Senator Feinstein held onto that letter for six weeks! Is Feinstein now on her own discerning what felony disserves immediate attention and what does not? Did Feinstein not admit that WOMENS’ sexual assault claims are not that important by holding onto that letter? She never allowed Ms. Ford even the anonymity she requested. She was not even told the committee was willing to come to her for her testimony – I suspect so that a National television spectacle would be made of Kavanaugh. His personal privacy was violated and he was broadsided by it, when no crime was ever reported to the proper authorities in the local jurisdiction for 36 years and has still to be reported. No corroboration, no location, no date…he should feel if he could be violated so could the Senators doing this to him to make a circus, a disgrace out of a position of worthiness which was degraded to the point of a high school yearbook and “flatuance”! Senator Graham was right to explode in fury! He was the only person with righteous indignation! It was a disgrace of the highest level for both people. Our government is corrupt – and the DEMOCRATS JUST SHOWED THEIR REALLY TRUE COLORS!

  8. Judge Kavanaugh Is One Angry Man
    He’s shown us that he’s up for a fight, but can he rule dispassionately?

    By Greg Weiner

    https://www.nytimes.com/2018/10/01/opinion/kavanaugh-supreme-court-senate-hearing.html

    “There is, again, no glory to be had. Perhaps the F.B.I. will uncover useful evidence about what happened 36 years ago. But to advise and consent to his nomination, the issue the Senate must resolve is not merely how Brett Kavanaugh behaved in 1982. It is how Judge Kavanaugh comported himself in 2018, on television. Whatever else we can say, he did not act like a justice of the highest court in the land.”

    1. Anonymous – I was just telling a friend that the first thing he should do if he is sworn in to the SC is yell “Release the Kraken!!!” Bring me an abortion case!!!” 🙂

    2. they are scurrilous dogs, to torment him and then expect him to be cold and heartless in his own defense.

      a justice is a man not a marble statute. these Democrats make every day a new insult to this man and so all men

      pick sides folks, pick sides, today’s lies and slanders will be long remembered and how you came down on one side or another will be equally long remembered

    3. if Trump goes away, by election or whatever means the Democrats engineer, ten thousand Trumps will fill his place. I want to see studs like Trump from the top to the bottom. Men who will laugh at insults and hurl their own. Men that can sleep through a thunderstorm and rise rested and ready.

      From now on, if I think a Republican is weak, he won’t get a dime or vote from me. Or she. They better be strong first, good later, or maybe not at all; just strong, just winners. No more choir boys, no more rigorously honest politicians who can’t make it happen.

      No more mister nice guy, capisci?

      This is a great day for Republicans: the day they grow up or give up

      Don’t like Kav? I say pull his nomination and put in Attila the Hun

  9. Bill Clinton was fine with Feinstein, Leahy, Durban, Blumenthal et al.:

    Bill Clinton Accused of Rape

    Broaddrick, who was known as Juanita Hickey at the time, first met Clinton when he made a visit to her nursing home during his 1978 gubernatorial campaign. Clinton was Arkansas Attorney General at the time. Broaddrick wanted to volunteer for the campaign, and says Clinton invited her to stop by the campaign office in Little Rock.[12] She contacted the office a few weeks later while in the area for a nursing home conference. Clinton said he would not be in the campaign office that day and suggested they meet at her hotel’s coffee shop instead. Upon his arrival, however, he allegedly requested that they instead have coffee in her room to avoid a crowd of reporters in the lobby. Broaddrick agreed.[3]

    Broaddrick says the two spoke briefly in her room, with Clinton describing plans to renovate a prison visible from her window if he became governor. Then, according to Broaddrick, Clinton suddenly kissed her. Broaddrick says she pushed Clinton away and told him she was married and not interested, but he persisted. As recounted in the NBC interview:[3]

    Then he tries to kiss me again. And the second time he tries to kiss me he starts biting my lip … He starts to, um, bite on my top lip and I tried to pull away from him. And then he forces me down on the bed. And I just was very frightened, and I tried to get away from him and I told him ‘No,’ that I didn’t want this to happen but he wouldn’t listen to me. … It was a real panicky, panicky situation. I was even to the point where I was getting very noisy, you know, yelling to ‘Please stop.’ And that’s when he pressed down on my right shoulder and he would bite my lip. … When everything was over with, he got up and straightened himself, and I was crying at the moment and he walks to the door, and calmly puts on his sunglasses. And before he goes out the door he says ‘You better get some ice on that.’ And he turned and went out the door.

    When asked if there was any way Clinton could have thought it was consensual, Broaddrick said “No, not with what I told him and with how I tried to push him away. It was not consensual.”[3]

    Broaddrick shared the hotel room with her friend and employee Norma Rogers. Rogers attended a conference seminar that morning, and says she returned to their room to find Broaddrick on the bed “in a state of shock,” her pantyhose torn in the crotch and her lip swollen as though she had been hit. Rogers says Broaddrick told her Clinton had “forced himself on her.”[12] Rogers helped Broaddrick ice her lip, and then the women left Little Rock. Rogers said that Broaddrick was very upset on the way home and blamed herself for letting Clinton in the room.[3] Broaddrick says she did not tell her husband, Gary Hickey, about the incident, and told him she accidentally injured her lip. He told NBC he did not remember the injury or her explanation.[3][13] David Broaddrick, however, has said he noticed her injured lip, and she told him that Clinton had raped her when he asked about it. Three other friends confirmed that Broaddrick had told them about the incident at the time: Susan Lewis, Louis Ma, and Jean Darden, Norma Rogers’ sister.[3] Broaddrick did not recall the date of the alleged incident, but said it was spring of 1978 and that she had stayed in the Camelot Hotel. Records show Broaddrick attended a nursing home meeting at the Camelot Hotel in Little Rock on April 25, 1978.[3][13] The Clinton White House would not respond to requests for Clinton’s official schedule for the date,[14] but news reports suggest that he was in Little Rock that day, with no official commitments in the morning.[3]

    – Wiki

  10. I believe that the Committee should be done away with. This should be debated on the Senate floor, but off camera. That would reduce the temptation for grandstanding, or getting soundbite for re-election.

    This needs to be a serious process again. In addition to your suggestions, I hope someone can come up with a way to minimize the political warfare. Some sort of rule to prevent withholding information until the 11th hour to deliberately monkey wrench the process, and a rule where accusations must be proven.

    If someone had been kicked out of university for such a case, in spite of the victim changing her story, and exculpatory evidence, then there would be an uproar. This is even worse.

    I also think that people should be arrested and prosecuted for threatening people in public places like restaurants, trying to chase them from public places, or trapping them inside. Statements like, “you’ll never be safe” should be investigated. Is it free speech or a real threat of violence? I’m not a lawyer so I don’t know. If someone told me I’d never be safe, I would take that as a death threat and get concealed carry. We are seeing the rise of political terrorism, and it must be stopped.

    1. the degree to which free speech law protects threatening speech is generally underestimated by the public. the Left is far more daring on the point. here is one survey, there is lots of info on the net. it’s quite amazing actually

      https://www.heritage.org/the-constitution/report/true-threats-and-the-limits-first-amendment-protection

      the right should use its own free speech.

      my free speech is this. there will be a day of reckoning and it will be like what Tennyson said of Nature, “red of tooth and claw”

      on that day, rednecks and the heel of every democratic insult and joke, will be ready.

      these words are well inside the far ranging limits of free speech

  11. Given the Senate’s incumbent 95% reelection rate, it would seem members of the Senate need to be as fully vetted as the SCOTUS nominees they confirm. Let’s dig into their high school and college history. Let’s review their private lives and relationships. Let’s review their financial net worth before and during their time in office. Let’s do a deep dive into the PAC’s that support them. Then let’s have their congressional work evaluated relative to their oath of office. Develop a way to score all of that to give these Senators a rating. Fall below that score and you are not eligible for reelection. You want to be on the Senate Judiciary Committee (Corey Booker), you need a score of X. You want to vote on the Senate floor for confirmation, you need a minimum score of Y.

    It would have been fitting for BK to roll into the confirmation hearings with a cooler of beer. And every time one of these Senators wanted to question BK on his judicial record, BK stare right back at them and say here, hold my beer.

        1. https://nypost.com/2018/08/08/dianne-feinstein-was-an-easy-mark-for-chinas-spy/

          long history of lobbying for the Chicom’s interests, that DiFi
          who had a 20 years long Chinese spy on her staff

          this is not accidental; Silicon Valley wants to team up with the Chicoms to penetrate the Chinese market, which they have locked down. It won’t happen with DJT engaging in “trade war”

          they also want that cheap Asian h1b labor to import

          Count up the billionaires on which side of any conflict and you will get an idea of what’s really in play. And no the socalled rightwing billionaire Koch bros do NOT support DJT.

  12. We continue to see standards of privacy eroded for official work. The media gladly collaborate with insider criminal leakers. Where are the FBI investigations to discover and prosecute these leaks? Why isn’t the Senator or Congressperson whose office leaks rebuked by Congress? That will finally stop the leaking, when the boss is going to be Censured for a violation of Congressional Confidentiality in their office.

    We cannot operate government without clear standards of what is private and what is public.

    The Ford letter should have been stamped “Congressional Confidential” in big red letters, so that any journalist receiving it would realize that a privacy violation has occurred. That would make clear that there could be damage to publishing it.

    It is undermining trust and established processes to allow such politically-motivated leaks.
    The only way to recover is to renew the rules of public-relations between government and journalism. Journalists are entitled to information released to the public. They are expected to respect privacy within government offices. Those who break these standards should be driven out of the media as anarchists.

    1. the mass media is owned by billionaire anarchists. they will continue.

      this is the tyranny of private interests that is suffered more and more in America by a state that is weak by design and incapable of not being dramatically manipulated by powerful capitalists on a daily basis

      Trump is the type of a class- traitor like FDR was

Comments are closed.