Brett Kavanaugh's Contentious Confirmation Proceedings Show a Process ‘Damaged Perhaps Beyond Repair,’ Experts Say

Brett Kavanaugh's Supreme Court confirmation hearings have been dominated by partisan debates and public outrage since they began on Tuesday.

Arrests of protesters and spats between Republican and Democratic Senators have confirmed the country's political bifurcation. 

And a less obvious, but potentially sinister and historically significant, undercurrent is running beneath the visible polarization.

After years of growing partisanship, confirmation hearings are now usually a distinctly political exercise. But experts say that Kavanaugh’s hearing represents a low point which threatens to leave a permanent scar on the judicial approval process and further degrade its function.

“This hearing has all the content of a slurpee. There is very little beyond judicial platitudes and soundbites,” Jonathan Turley, a professor of public interest law at George Washington University told Newsweek. “I think that this hearing could set even more damaging precedent for a process that has already been damaged, perhaps beyond repair.”

Kavanaugh has dodged and feigned ignorance, skirted questions and avoided discussing his judicial record, much as Neil Gorsuch did in his confirmation hearings last March.

But the protracted avoidance of clear answers did not start with recent Republican nominees, Turley said, noting that Democrats were fine with Elena Kagan and Sonia Sotomayor providing ambiguous answers to direct questions.

The confirmation process has been opaque since before Ruth Bader Ginsburg famously said in 1993 that she would not “preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.”

The moment has been frequently invoked since to avoid answering simple questions. "Both Democrats and Republicans have used the Ginsburg rule to prevent substantive discussions," Turley said. "The Democrats, if anything, have been more responsible for that trend."

RTS20BVO Supreme Court nominee Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill on September 6. REUTERS/Alex Wroblewski

Kavanaugh's hearings, though, have showcased a much greater lack of transparency and partisanship than anything in living memory. 

Some 147,000 documents remained “committee confidential” as of last month, preventing their public disclosure.

The White House also withheld over 100,000 pages of information linked to the judicial nominee. That, said Chiraag Bains, the director of legal strategies at the think-tank Demos, is “something that’s never happened before.” About 42,000 pages of White House documents were released just hours before the questioning started.

Further, the approach taken by senators during the hearings has been transparently political. Democrats have pressed Kavanaugh on his record on racial equality and his views on abortion. Republicans have deflected the concerns and have sought to "make Kavanaugh into some racial hero," which his record doesn't show, Bains said. Senator Ben Sasse said Democrats were making “deranged comments” about Kavanaugh and referred to critics as “hysterical.”

Mitch McConnell, the Republican leader of the Senate, elevated partisanship in the judicial process to a new height, Bains said, by blocking the nomination of Merrick Garland, President Obama’s chosen replacement for Antonin Scalia.

“The nomination process has corroded as senators put party above the American people,” Bains saidMitch McConnell, the Republican leader of the Senate, took the process to a new low, he said, by blocking the nomination of Merrick Garland, President Obama’s chosen replacement for Antonin Scalia. "That was just a pure political power move in the hopes that a Republican would win the presidency.” 

While Turley said the conduct is concerning and threatens to destroy whatever decorum remains between opposing politicians, he does not think it is a surprising turn of events.

"There's ample hypocrisy on both sides," he said. "Confirmation hearings tend to reflect the times they’re in. Unfortunately, this hearing represents a certain national distemper that has overtaken our politics."

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