A Few Comments on the Kavenaugh Nomination

Up till now I have done my best to avoid the subject of the Kavenaugh nomination on the theory that if I don't absolutely have to wade through a sewer full of toxic sludge, why would I do it voluntarily?  But since the subject has taken up all the oxygen today, I might as well make a few comments.

I am reasonably confident that Brett Kavenaugh could shoot someone in the middle of Fifth Avenue and the Republicans would still confirm.  This is the absolute most important thing to them.  I recall someone suggesting to Flake or Corker that they block Trump's judges as a way of pressuring him to cooperate and Flake or Corker dismissed that as cutting off their nose to spite their face.  This is quite right from a Republican perspective.  Ultimately Trump doesn't care about judges, except to the extent that he is praised for his choices.  Republicans, on the other hand, care about judges more than anything.  It logically follows that the proposal is absurd.

In pre-Trump days, a nominee could survive allegations like Kavenaugh is facing, but only by going the contrition route.  He would acknowledge that he did binge drink in his youth, that he did drink to the point of blacking out, that he could not say with certainty what happened during the blackouts.  He was out of control when it happened, but since he chose to drink so much he is responsible.  And then he could present himself as a reformed man and discuss how he put all that behind him.  No more.  In the Trump era, the way to survive such allegations is to lie through your teeth about everything and accuse your attackers of being a partisan conspiracy.  This is very much a Bad Thing, although I suppose we should be glad that at least he left out the Deep State and Soros money as being a little too paranoid.

It is also depressing that people on opposite sides of the partisan line watched the same testimony and saw completely different things.

Finally, does this show that Democrats made a mistake in eliminating the judicial filibuster?  I would still say no.  I also highly recommend this article on the subject.  The whole idea that requiring a super majority is the norm and passing anything with a simple majority is an extraordinary event is a recent development.  Traditionally, passing legislation by a simple majority was the norm and filibusters were an extraordinary event, reserved for the most controversial legislation.  Filibusters of nominees were unheard of.  Clarence Thomas was confirmed by a vote of 52-48.  While many things about the nomination were controversial, no one questioned the use of a simple majority to confirm him.  The article blames Democrats for beginning the practice in 2003.  It was at that time that Mitch McConnell called eliminating the judicial filibuster the "nuclear option," suggesting that it was a very radical measure indeed.  Judicial filibusters were suspended for a while, but began to creep back in.  Under the Obama Administration, Republicans began to filibuster all nominees for the D.C. Circuit court, refusing to confirm any regardless of the merits. It was this that inspired Harry Reid to end the judicial filibuster.  To believe that Republican would have allowed Democrats the same privilege once a Republican was elected is extraordinarily naive.

Let's face it.  We, as a country have reached the point that Republicans will not confirm any judge who is not approved by the Federalist Society and Democrats will not confirm any judge who is approved by the Federalist Society.  In effect, we have reached the point that judges cannot be confirmed unless the President and the Senate are controlled by the same party.  The last thing we need is to be unable to confirm judges unless the President has a super-majority in the Senate.