Senate Republicans figure to have the 51 votes to confirm Brett Kavanaugh as the next Supreme Court justice. The count might be even higher if a vote were held today. No Republican has yet defected, and it’s just as likely during their shorter-than-usual August recess that Kavanaugh will attract a few crossover votes from Democratic senators in Trump states than it is that a Republican senator like Susan Collins of Maine or Jeff Flake of Arizona will stand up to the Trump administration and vote down Kavanaugh.
The Republicans have the votes, for now, despite the fact that Kavanaugh is one of the least popular Supreme Court nominees in the modern era, endorsed for the job by a president teetering on the edge of a constitutional crisis. And they have the votes, for now, despite the fact that he's almost certainly going to vote against broadly popular policies — like reproductive rights, consumer protections, and environmental laws — if he makes it onto the court.
But three developments last week each in their own way suggest a level of concern, and defensiveness, on the part of Republican leaders that belies the strength of their political position. It's as if they understand that the only thing that can alter the current winning dynamic on Capitol Hill is if public opinion shifts anew against the nominee because of his writings as a staffer in the George W. Bush White House. And the only way that could happen is if he is unmasked as another white, male ideological conservative warrior dressed up in judicial robes.
First came a series of particularly hypocritical comments from Sen. Orrin Hatch, a former Senate Judiciary Committee chair, who helped politicize countless Democratic judicial nominees and refused even to allow Merrick Garland to get a hearing when President Barack Obama nominated him to the bench in 2016. Suddenly Hatch, as partisan as the rest of them, has found the gospel of bipartisanship and says Democrats should be ashamed of their opposition to Kavanaugh.
“We can't keep going down this partisan, picky, stupid, dumbass road that has happened around here for so long,” he said, shamelessly — and pointlessly, if the idea is to draw Democratic votes to Kavanaugh.
Then, hours later, came word from the general counsel of the National Archives that it could not complete on time a documents request by current Senate Judiciary Committee Chair Charles Grassley, the Iowa Republican. Grassley wanted those documents by August 15, tracking the brief summer recess timelines, so confirmation hearings could begin in September. The Republican plan was to get Kavanaugh through the Senate with a favorable vote before the Supreme Court begins its new term in early October.
But the Archives indicated that they cannot complete the task until late October, just before the midterm election. The Archives estimates the request covers about 900,000 pages, most of which deal with Kavanaugh’s work in the White House counsel’s office. No matter, Grassley’s folks quickly responded, they’d proceed with the confirmation hearings anyway, with or without all the documents, in part because they’re getting some Kavanaugh documents from the Bush presidential library.
Grassley's is a terrible position to take. It’s one thing to pretend that Senate Democrats are making unreasonable demands to see documents from all of Kavanaugh’s work in the executive branch. It’s another to steam ahead with hearings before the National Archives can furnish all the documents requested by the GOP Senate Judiciary Committee chair. If nothing else, the rush to convene hearings prematurely makes it seem as if Grassley & Co. know there are “smoking guns” lurking in the material and that they want to keep them buried.
Grassley did little to dispel that suspicion Friday when he published an op-ed in The Washington Post in which he made a series of feeble arguments for restricting information about Kavanaugh’s five years in the White House. The worst of these points, distilled, is that we don’t need to know what Kavanaugh thought while working for a president. Instead, we should parse Kavanaugh’s hundreds of opinions as an appellate judge to discern how he would behave on the Supreme Court.
This position is fine unless you want to know what Kavanaugh actually thinks about key issues as opposed to what he was willing to write in his majority opinions, concurrences, and dissents while on the D.C. Circuit, many of which, I suspect, were composed with an eye on a future Supreme Court nomination. There is every reason instead to believe that the best way to understand all the nooks and crannies of Kavanaugh’s conservative ideology is to track his work in the executive branch. The candor lies in the emails. The polish lies in those dry rulings. Grassley surely knows this, which is why his argument in the Post was so transparently awful.
Somewhere, Senate Majority Leader Mitch McConnell may be muttering, “I told you so.” He reportedly warned President Trump about nominating Kavanaugh. And I don’t believe the reason for that warning has yet been exposed. McConnell wouldn’t have warned Trump off just because Kavanaugh is likely to vote to overrule or undermine Roe v. Wade or because Kavanaugh is unlikely to stand up to special counsel Robert Mueller if push comes to shove over a presidential subpoena or deposition. It has got to be something else. And whatever it is has the Republicans rattled and scrambling to justify the desperate measures they’re using to keep secret evidence that the American people have a right to see.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
(Photo: Chip Somodevilla/Getty Images )