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Brett Kavanaugh hearings are the start of something big

The midterm season kicks off Tuesday when the Senate begins hearings on Supreme Court nominee, Brett Kavanau...

Posted: Sep 4, 2018 2:14 AM
Updated: Sep 4, 2018 2:14 AM

The midterm season kicks off Tuesday when the Senate begins hearings on Supreme Court nominee, Brett Kavanaugh. Although the hearings appear disconnected from the action on the campaign trail, they will become a pivotal moment for each party to highlight for voters what is at stake in November.

President Donald Trump's nomination of Kavanaugh brought many cheers from conservatives. Kavanaugh is one of the legal minds who comes from the movement that centers around the Federalist Society, which conservatives built in the 1980s in an effort to transform the courts. Faced with what they perceived to be the liberal dominance of law schools and justices, conservatives nurtured thick networks of intellectuals, justices, and lawyers who mentored talented conservative minds so that there would be deep bench from which presidents could make their appointments.

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Unlike Robert Bork, President Ronald Reagan's failed Supreme Court nominee in 1987, Kavanaugh is more polished and less polemical, which will make it much more difficult for Democrats to paint him as a right-wing zealot. Given Republican control of the Senate and the absence of a filibuster, the odds of Democrats sidetracking the nomination are virtually nil.

Although some on the right have grumbled that he was too Washington establishment for their taste, the National Review praised this "whip-smart legal conservative" while former Bush speechwriter Michael Gerson praised him as a "man of character, decency, and intellectual depth."

A majority of Republican governors signed a letter endorsing him. Kavanaugh has even received praise from several liberals who have urged their party to move forward with the confirmation. Lisa Blatt, a self-described "liberal feminist lawyer," wrote in Politico that "Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh ... The Senate should confirm him."

In the The New York Times, the distinguished Yale Law School professor Akhil Amar wrote that "it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh," who was once his student, and told readers that he "commands wide and deep respect among scholars, lawyers, and jurists."

Although without the filibuster most Democrats understand that they are fighting a losing battle to stop the nomination, they can use the hearings as a forum to remind voters exactly what is at stake in the midterm elections. There are few issues that have provided as clear-cut evidence of what the long-term implications are of united Republican government than the courts. Putting aside the Supreme Court, President Trump and the Senate Republicans have been remarkably effective at moving forward their picks in recent months, setting in motion a massive transformation of the judiciary.

At the Supreme Court level, the appointment of Neil Gorsuch was an early and massive victory for Republicans. This pick will shift the Court decisively to the right, with possibly more vacancies to come. "He has a very nice smile, but an inch below the surface, he is a hard-right warrior," Senate Minority Leader Chuck Schumer said.

As Democrats are seeking to bolster turnout in November, especially in the Senate races where the odds still favor the Republicans, the hearings will be an exceptional opportunity to lay out the kinds of policies that hang in the balance if Democrats don't regain control of Congress and Republicans keep moving forward with their appointments.

Several potential Democratic presidential candidates, including Cory Booker, Kamala Harris, and Amy Klobuchar, sit on the Judiciary Committee, and will have a chance to burnish their credentials with Democrats. By asking questions about executive power, abortion rights, affirmative action, money in politics, environmental regulation, the legitimacy of unions and more, they can create a roadmap for why voting Democratic in the Senate races is so vital if one cares about these issues.

Republicans understand that the hearings present a similar opportunity for them. Although they will have to be careful since they don't want to push Kavanaugh into making specific statements he would rather avoid and they don't want to further motivate Democrats into a bigger fight, they do want Republican voters to remember why they need to come out for their party even if they don't like Trump's style very much.

If there are concerns among Republicans about the long-term implications of the President for their party, the courts are one area that dispel those fears. In The New York Times, Thomas Kaplan reported that the administration was "leaving an ever-expanding imprint on the judiciary," as Republicans had undertaken a "determined effort to nominate and confirm a steady procession of young conservative jurists."

The recent confirmation of Georgia Supreme Court Justice Britt Grant to the appeals court made Trump the president with the highest number of circuit court appointments at this juncture in the presidency since the system was created in 1981.

If Republicans are seeking ways to energize their base for the brutal slog of the next few months this is it and they will now have a televised platform to remind their voters of this promise. Even without saying much, simply by handling the hearings well and controlling the Democratic attacks, the GOP will walk away happy that they are handing their supporters the most important item on their political wish list.

While it would be wonderful if Supreme Court confirmation hearings could be insulated from the political process, that will simply not happen in the near future. The reality is that the confirmation process has become deeply political and deeply partisan.

Successful nominees have learned how to survive through the polarization rather than pretend that it will go away. The Kavanaugh hearings are no different and, since they are taking place at the start of September, they will become the opening bell for a midterm election that will be as important to the country's future as any we have experienced in recent history.

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