Kavanaugh Hearing: What Buffalo Should Know

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Like much of America, I was closely watching Day 1 of the Kavanaugh Supreme Court hearing.  Here are some of my takeaways.

Last Minute Document Blasting? Seriously?

Reportedly, the Democrats received 42,000 documents late Monday night.  Democrats objected to this and Senator Klobuchar (Minnesota) rightly pointed out that in no court would a party be expected to proceed with a trial if the same scenario had happened.  Senator Grassley claims his staff had plenty of time to review the documents, and, therefore, no reason Senate Democrats shouldn’t have been able to do the same, but I’m going to call bullshit on that.  If the Federal government runs anything like the New York State government, the party in the majority has greater control over information and the access to that information than their minority counterparts.  Besides, it is unreasonable to expect Senators to be properly prepared to give their advice and consent (as is constitutionally required) in such a situation. Again, to Senator Klobuchar’s point, no court would allow such thing, because it violates the principles of due process that our democracy is founded upon.  Why would a senate hearing confirming a life-long judicial nominee be held to any other standard?

Denying Time for True Review

Related to the proper access of documents, Senator Blumenthal started off the hearing with a motion that the hearing be postponed until all documents related to Kavanaugh’s record could be obtained and properly reviewed.  A significant amount of the documents related to Kavanaugh’s time at the White House under George Bush had not been released, and there is considerable concern that it will highlight the judge’s views on executive power. Again, given that the point of the hearing is to closely examine the record for any indication (including a failure to uphold the separation of powers and the rule of law), this seemed like a reasonable request.  However, Grassley denied to put the motion to vote despite the text of the rule commanding that the chair shall put it to a vote. Grassley claimed the committee was not in executive session, and, therefore, the rules did not apply. I don’t know the senate committee rules well, but I trust that Senator Blumenthal, a Yale Law graduate, long-time attorney, and former Connecticut Attorney General can discern whether a set of rules only applies in executive session.  Moreover, when asked, Grassley could not quote to Senator Blumenthal where in the rules this restriction was stated and instead told Blumenthal, rather, he should be responsible for finding the supposed restriction.  This response was unacceptable and speaks to an unfair process (no matter how much Republic Senators wanted to laud Grassley for conducting such a fair hearing).  

And General Hypocrisy...

Many Senate Republicans accused Democrats of unfairly stalling the nomination for the judicial candidate, claiming that no one could argue against his being supremely qualified to serve on the Supreme Court.  To these remarks, I found myself practically frothing at the mouth considering that the Republicans refused to give Merrick Garland, who had an equally impressive record, a hearing at all. And when comparing Republican reasons given in 2016 to the reasons the Democrats have in 2018 (i.e. an ongoing criminal investigation, multiple lawsuits claiming the President’s violation of the emoluments clause, and a seeming inability to uphold the laws of the land as our constitution requires—see tweet disparaging A.G. Sessions for charging two Republican Congressman so late in an election year), I find no reason why Kavanaugh’s hearing shouldn’t also be denied.  

I begrudgingly agree with Senator Graham that Democrats could not have expected Republicans to pick an ideologically left-leaning judicial candidate.  I do, however, take issue with his comment implying that if Democrats wanted a say with respect to the nominee they should have won in 2016. He also went on to make much of the fact that the American people had spoken and this is what they chose.  First, the current president lost the popular vote, so, actually, this is not what we chose. Second, the Constitution calls for the advice and consent of the senate, not the advice and consent of the senate members belonging to the majority.

Kavanaugh’s Introduction and Personal Comments

I found myself rolling my eyes as Condoleezza Rice introduced Kavanaugh by saying “he’s a great guy” among other things and recalling how great of a colleague he was.  I could only think, “I can’t believe this woman of color is endorsing this man for Supreme Court who it is predicted will do so much to harm other women of color.” Still, the testimony of both humanized Kavanaugh (which was obviously the point), who up to that point had been talked about in the abstract for over six hours.

Kavanaugh’s own remarks did more of the same.  He talked of watching his mother teach students who had grown up during segregation.  He talked of how much he admired his mother’s career as she became a lawyer and, later, a trial judge.  He spoke of how she had taught him that a judge’s decision affects real people with real lives. He also spoke of his daughters, coaching their sports teams as “Coach K,” and seeing how those experiences helped to shape their self-confidence and the self-confidence of the other young girls on the team.  He mentioned his service with Catholic Charities serving meals to homeless people on the streets of Washington D.C.

When hearing all of this, there was undoubtedly a part of me that said, “maybe all is not lost if he were to be confirmed.”      

Why This Matters.

Kavanaugh is not a monster just because he thinks differently than I do.  If everything he said is true, I would agree that he seems like a great father to his girls and he takes an interest in the welfare of others.  As the hearing goes on, we are sure to hear that a judge’s role is non-partisan and that his political leanings are irrelevant. And, again, that language is enticing.  But, the Janus decision tells a cautionary tale that is relevant here. Groups like the Federalist Society, and others, argued the case was purely about the First Amendment and the ability of members to choose not to support political speech they disagreed with.  They said the current system that allowed unions to separate political and administrative activities was insufficient, and, in the end it was all political speech. Those groups maintained that union membership in “right to work” states had not significantly dropped off due to legislation, so there was no reason to expect the same if the Court were to rule in favor of Janus.  The Court did rule in favor of Janus, and, within days, these same groups, reportedly, were contacting union members and attempting to persuade them to cancel their union memberships, because there was always a greater political agenda at work.

With Kavanaugh, we can expect at least to some degree (if not to a great degree) he supports the agenda of these groups, and those personal opinions will have some bearing on his rulings.  In that case, what does that mean for:

  • The women’s lives that will be in jeopardy if he fails to uphold the right to an abortion?  

  • The women of color, who would be disproportionately affected by such a ruling?

  • The women who could be criminally charged for simply having a miscarriage?  

  • The millions of Americans who will only continue to see the inequality gap increase?  

  • Those with pre-existing conditions and their families?

  • The rights of people of Latino descent as the current administration seeks to unjustly strip them of their citizenship?

  • The Muslims who are told they aren’t good enough to share in our American dream?  

The list of those at stake goes on and on, and, while, yes, these are undoubtedly questions that should be decided by Congress, they are very often not decided by Congress, and in many instances end up before the judiciary as individuals seek to have their rights enforced by an independent body.  For this reason, rigorous debate surrounding this nomination is justified and should be demanded by the American people.

Vanessa Glushefski

Glushefski Law , 286 Lafayette Ave, Buffalo, NY, 14213, United States