Oyez, oyez, let the battles begin anew.
Finally, at very long last, after almost a full year of dithering, the Senate this month again will take up at least one contested federal appeals court nomination. And while it still baffles me why Republican senators find the slogging so tough on these matters, the good news is that Majority Leader Bill Frist, Majority Whip Mitch McConnell, and Judiciary Committee Chairman Arlen Specter have chosen wisely in making White House Staff Secretary Brett Kavanaugh the next nominee to run the gantlet.
Before getting into why the Kavanaugh nomination is such good, uh, strategery, I must digress to acknowledge that this particular nomination is of longstanding interest to me.
My point then was one I’ve made numerous times since in a wide variety of fora, namely that if Hillary Clinton bears a grudge against Mr. Kavanaugh just because he worked for Independent Counsel Ken Starr, then her grudge is both petty and misdirected. As I explained here at the Spectator on March 29, Kavanaugh was (along with the legendary Watergate-era figure Sam Dash) reported by none other than the Washington Post’s Bob Woodward to be the coolest head, politically speaking, of the entire Starr team, meaning the one least likely to do things that appeared to be overreaching against the Clintons.
(This is not meant as a knock on the highly honorable Judge Starr, but only to say that his political/PR judgment was not equal to his legal brilliance or his prosecutorial meticulousness.)
And as the Mobile Register (in an editorial I drafted) opined in January of this year, “The simple reality is that at age 40 [now 41 — ed.], Brett Kavanaugh has a spectacular resume and a sterling professional reputation. A graduate of both Yale University (cum laude) and Yale Law School, he clerked for two top federal appeals court judges and Supreme Court Justice Anthony Kennedy. He also served several years at a top law firm, worked in the U.S. Solicitor General’s office, and served as senior associate counsel to President Bush before being promoted to staff secretary. And regardless of what one thinks of the Starr investigation, the truth is that it is a mark of distinction for a young lawyer to be hired by a federal independent counsel. That experience, too, should be counted not as a black mark but as a feather in his cap.”
In short, Brett Kavanaugh is stupendously well qualified to be a federal appeals court judge, due both to professional attainments and to temperament (not to mention legal brilliance), while the knocks against him boil down merely to two versions of guilt by association: association with Ken Starr; and association with a president, George W. Bush, who drives the left batty. On the first, the American people are perfectly capable of seeing Hillary Clinton’s sheer spite for what it is, and of rejecting it. As for the second, well, Senate Democratic Leader Harry Reid already is on record as saying that Harriet Miers was qualified to be on the Supreme Court, and Kavanaugh’s resume is more impressive than hers was. Plus, he is nominated not for the nation’s highest court, but its second-most important — which means that for the job at issue, he is even more clearly qualified still.
As it was put by Mark H. Tuohey III, former President of the District of Columbia Bar and former Justice Department official under Jimmy Carter, “[Mr. Kavanaugh] is exceptionally well qualified to serve on one of the nation’s most important appellate courts, as he possesses keen intellectual prowess, superior analytical skills and a strong commitment to applying the role of law in a fair and impartial manner. As well, Mr. Kavanaugh’s interpersonal skills will enable him to become a strong collegial member of a court where personal relationships lend themselves to a better administration of justice.”
All of which — qualifications, temperament, the chance to show Sen. Clinton’s pettiness — serve as the necessary predicate for pushing Kavanaugh’s nomination, but alone they may not be sufficient to encourage some skittish GOP senators to get off the dime. Fortunately, other considerations make Kavanaugh, in my mind, the perfect choice to be the vanguard of a new effort to finally confirm more appellate nominees.
First, like Justices John Roberts and Samuel Alito, Kavanaugh is smart enough, well enough (indeed, so thoroughly) versed in constitutional law, and articulate enough, that Republican senators can be sure he could give a great account of himself if all heck breaks loose and he’s pushed before the cameras. He’s almost impossible to effectively demonize, because both on paper and in person (from what I hear and read, combined with my few phone conversations with him years ago) he is so flat-out impressive. Do the liberal Democrats really want to fall on their swords, and trigger the Republicans’ constitutional option against judicial filibusters, against somebody so credentialed and presentable that their obstructionism looks both nasty and idiotic?
The Democrats will surely know that if they filibuster Kavanaugh, they will lose — and open the floodgates for all Bush nominees who can get just 50 Senate votes (plus Vice President Dick Cheney’s), including possible Supreme Court replacements for Justices John Paul Stevens, David Souter, or Ruth Bader Ginsburg.
On the other hand, letting Kavanaugh pass puts the liberals in a bind, both because Sen. Clinton is reportedly so adamantly against him and because all the liberal pressure groups such as Nan Aron’s Alliance for Justice have been targeting him for so long. He was noticeably excluded from any mention at all in the (in)famous agreement by the Senate’s Gang of 14 last year (and Ohio’s GOP Sen. Mike DeWine lamely refused to publicly back Kavanaugh right after the deal was made), so the wacky left will be emboldened for a fight when Kavanaugh’s nomination goes to the Senate floor. All of which puts liberal senators in a real pickle: Fail to filibuster Kavanaugh, and they again tick off the “groups” to which they are so slavishly allied; but try to filibuster him, and the Senate Republicans will have no problem maintaining enough support to nuke the Democrats’ misuse of that parliamentary procedure once and for all.
Politically speaking, the Kavanaugh nomination is the perfect rallying point for Republican senators who in the past have failed to understand why fights over judges are political winners for the right. It bears repeating that when the issue is judges, conservatives win. We win because Americans instinctively believe that the meaning of laws shouldn’t change with the whims of judges. We win because conservative (textualist, deferential) judges tend to reach results, by the very nature of their jurisprudential reasoning process, that the majority of Americans support: Against public confiscation of private property for other private interests. Against partial birth abortion. Against a crazed antagonism toward all references to faith in the public square. For the Pledge of Allegiance. Against judicially imposed taxation, and against judicially imposed legal recognition of homosexual unions. And certainly against the use of foreign law to trump traditional interpretations of the Constitution of, after all, the United States of America.
Brett Kavanaugh is the perfect vehicle with which Republicans can argue these points and defeat the left in the battle of public opinion. A little backbone from other GOP senators, in support of the Frist-McConnell-Specter selection of Kavanaugh as the test case, can pull the GOP Congress out of the doldrums and set the stage for a successful summer and fall.
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