On Monday, Senator Jeff Flake (R-AZ) came to campus to talk about “a rejection of American politics and a return to principle.” While the topic is an important one, I do not believe that Senator Flake is in any way qualified to speak on it.
Since Donald Trump’s candidacy, Flake has worked carefully to craft an image as a sensible Republican alternative by tweeting his disdain when the president says something especially problematic.
In his brief remarks, Flake challenged the idea of tribal politics and said that more often than not, he found himself to be a man without a party. My only question is when exactly Jeff Flake has found himself without a party. Was it when Mitch McConnell decided that the U.S. Senate would never hold confirmation hearings for Merrick Garland? Because that seems to have been the clearest example of bucking Senate norms, and yet Jeff Flake made no principled stand to support a hearing for the president’s nominee.
He voted to name Betsy DeVos as Secretary of Education, even after she demonstrated a clear lack of understanding of even the most elementary aspects of her position. Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) opposed DeVos’ nomination, forcing Vice President Mike Pence to cast a tie-breaking vote – the only time that has happened for a cabinet secretary nomination. Senator Flake could have made the politically courageous decision to oppose her disastrous nomination. He did not.
Did he feel without a party when he voted to repeal the Patient Protection and Affordable Care Act? Because on that vote of massive historical significance, Jeff Flake towed the party line, even when Senators Collins and Murkowksi joined Flake’s own Arizonan colleague, John McCain, in opposing the measure.
When it came time to point to his record of bipartisanship during his speech on Monday night, Flake cited how upset he was when his colleague, Gabby Giffords (D-AZ), was shot in Tuscon, Arizona. When Giffords attended the State of the Union address the following year, Jeff Flake helped her stand so she could applaud President Obama. Despite this, Senator Flake never pushed for any real comprehensive gun safety legislation that could prevent another shooting like the one Giffords endured.
Is being sad about a colleague being shot truly how low the bar for civility in our politics has fallen?
Jeff Flake has called for “a rejection of American politics.” Yet, he seems to be the politician’s politician. He tweets and talks a lot about bringing people together and shedding partisan politics, but when it comes to casting a vote, Flake does as his party asks.
On Friday, Jeff Flake looked visibly ill as he voted to move Brett Kavanaugh’s nomination out of committee to a full Senate vote. Yes, he called for an FBI investigation into the allegations made by Dr. Christine Blasey Ford and others. His concern, however, seems to be more about the process of how to confirm a man accused of sexual assault to the Court rather than whether or not a man accused of sexual assault should even be confirmed.
Jeff Flake is a conservative Republican. I do not expect him to vote with Democrats on every issue, or even on any issue, really. I do expect him to stop lecturing me about taking principled stands when he has never once demonstrated a real concern for doing so.
A reporter asked me what I thought Jeff Flake’s legacy would be as he prepares to leave the Senate after his term ends in January. I answered honestly that I believe Jeff Flake’s legacy hinges on the vote he is about to make and whether or not he votes to believe survivors of sexual assault. For me, Jeff Flake’s votes – not his tweets – will be his legacy. I hope he casts the right one on the Kavanaugh nomination.
Edit: The piece originally referred to Lisa Murkowski as a senator from Maine. She is, in fact, a senator from Alaska. The piece has been updated to reflect this correction.
This past Monday, Senator Jeff Flake (R-AZ) visited the New Hampshire Institute of Politics at Saint Anselm College to give a talk entitled “After the Deluge: A Rejection of Destructive Politics and a Return to Principle.” Flake’s visit to Saint Anselm College, a favorite stop for any presidential hopeful, came in the midst of an ugly battle over Supreme Court nominee Brett Kavanaugh. In his speech, Flake lamented the damage that tribalism has done to the United States under President Trump.
“Tribalism is ruining us,” Flake announced to the crowded auditorium, “It is tearing our country apart. It is no way for sane adults to act.”
Some students in attendance agreed with Flake’s message of bipartisanship. Tim Madsen ’19, Chairman of the Saint Anselm College Republicans, expressed his own opinion of Flake’s visit, saying, “He was calling for more civility and bipartisanship in government, something that is certainly a good thing.”
Emily Prud’homme ’19, an International Relations major, also attended the event and shared her thoughts on Flake’s rhetoric: “He gave a thoughtful speech about building bridges between party lines and uniting together as an American people. His message was that sometimes you must fail your tribe to achieve the greater good.”
Flake went on to say that “the only tribe to which we owe allegiance is the American tribe.”
Sean Connor ’20, a Communications major, said he was skeptical of some parts of Flake’s speech. “I think that Senator Flake blurred the line between when it is right to go against partisan lines and when it becomes deconstructive towards progress as a whole. I really respect Senator Flake and his work, but I think that if he wants us to return to his vision of civility, he needs to stop seeing his party as a tribe he is looking forward to disappointing, and more as a people he hopes to work with to a better tomorrow.”
Indeed, Senator Flake remarked that he had failed his tribe, the Republican Party, but said that he hopes to continue to do so and preached a message rooted in the importance of compromise.
He briefly discussed his friendship and working relationship with Senator Chris Coons (D-DE). Coons and Flake gained notoriety when they struck a deal shortly before the Senate Judiciary Committee’s vote to advance Brett Kavanaugh’s nomination to the full Senate. Flake demanded that the FBI reopen the background check investigation into Kavanaugh in light of Dr. Christine Blasey Ford’s allegations of sexual assault.
Saint Anselm students had mixed reactions to Flake’s vote to conditionally pass Kavanaugh on to the full Senate. Prud’homme disagreed with Flake, saying, “I do not agree with his decision to vote with the Republicans. I recognize the complexity of the situation – that this claim of sexual assault occurred when Ford and Kavanaugh were very young.” She continued, “However, sexual assault cannot be undermined no matter how many years pass . . . Denying him would send a message that our country and government is not tolerant of this type of conduct,.”
Hayley Morgan ’20, said, “I didn’t really enjoy the fact he voted for Kavanaugh, but I respected how he used his position in this matter to call for an FBI investigation.” Morgan also attended the protest, saying she did so “because I believe that even if Judge Kavanaugh is innocent of the allegations against him, he has proven that he does not have the temperament to have a lifetime appointment to the Supreme Court.”
Haley Bragdon-Clements ’21, the Vice President of the Saint Anselm College Democrats, said, “I applaud how Senator Flake handled this matter, and I wish that other Republicans had taken the same initiative. I hope to see people on both sides of the aisle coming together and treating this as a nonpartisan issue as how this is handled will set a tone for how this issue is addressed in the future.
Across the street from the New Hampshire Institute of Politics, people voiced their contempt for the Kavanaugh nomination. Nearly 130 protesters, including students, gathered together in protest of Senator Flake and to urge him not to vote in favor of Kavanaugh come time for the full Senate vote.
Molly Benson ’20, a Nursing major, attended the protest. “As a student, I hope this sent a message that if sexual assault is not welcome on this campus, it absolutely should not be welcome or rewarding in the highest court in our country,” she said. “If this Senate confirms Kavanaugh, they are setting a precedent that if survivors of sexual assault come forward, abusers will not be held accountable.”
At the end of his speech, Flake did not take questions from the audience, which is unusual compared to other NHIOP events.
Sean Connor, ’20, remarked that he was not surprised by this change. “I think given the events of the last week, the best way to control that environment was to avoid a questions and answers session. It’s easy for events like this to turn into chaos.”
After his remarks, Flake was immediately swarmed by reporters from various outlets. The senator made it known that he is waiting for the results of the FBI investigation before deciding whether or not to vote in favor of Kavanaugh.
For the second time this month, the Senate Judiciary Committee convened hearings on the nomination of Judge Brett Kavanaugh to the United States Supreme Court. The hearings that took place today had a very specific purpose: to investigate Dr. Christine Blasey Ford’s claim that Kavanaugh sexually assaulted her in the summer of 1982. Dr. Ford is one of three women to publicly say that Brett Kavanaugh either sexually assaulted them or was present while they were sexually assaulted.
Many Americans drew comparisons to similar hearings that took place in 1991, when Dr. Anita Hill presented her claims of sexual harassment against then-Judge Clarence Thomas. Thomas was confirmed to the Supreme Court after Dr. Hill’s testimony failed to convince the all-male Judiciary Committee and an overwhelmingly male United States Senate.
In Dr. Ford’s opening statement, she presented her testimony as a “civic duty” rather than a personal choice. She said she battled with whether or not to go public with her experience with Judge Kavanaugh for weeks but decided that it was her duty to do so, regardless of the personal impact it had on her and her family. “I am terrified,” she admitted to the Committee.
Dr. Ford provided the Committee with a detailed account of the incident as she says it happened. The Hilltopper has chosen to publish in her own words to avoid mischaracterizing Dr. Ford’s comments:
“Brett [Kavanaugh] and Mark [Judge] came into the bedroom and locked the door behind them. There was music already playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding his hips into me. I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They both seemed to be having a good time. Mark was urging Brett on, although at times he told Brett to stop. A couple of times I made eye contact with Mark and thought he might try to help me, but he did not. During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. The last time he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room. Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I heard Brett and Mark leave the bedroom laughing and loudly walk down the narrow stairs, pin-balling off the walls on the way down.”
The all-male Republican caucus chose to hire Arizona prosecutor Rachel Mitchell to cross-examine Dr. Ford. A sticking point for Mitchell was Dr. Ford’s fear of flying, which led to Mitchell to ask how Dr. Ford travelled for vacation, for work, and to the hearing. Dr. Ford acknowledged she had a fear of flying but that she had to put it aside to attend the hearing, as she did not think it was feasible for the Judiciary Committee to travel to California to meet with her in her home state. Senator Chuck Grassley (R-IA), the Chairman of the Senate Judiciary Committee, pointed out that they had extended that offer to her; Dr. Ford said she was unclear what the offer had been.
Another line of questioning from Mitchell related to a 2018 polygraph test that Dr. Ford took, the summary results of which were presented to the Committee. Further documentation of the results could not be released because Senator Grassley, Chairman of the Committee, denied Dr. Ford’s request that the polygraph technician be questioned as an expert witness.
Mitchell wanted to find out who paid for the polygraph test. Dr. Ford was initially unsure as to who paid for it but, after a lunch break, her counsel said that they paid for the polygraph “as is routine” and that they were working pro bono for Dr. Ford.
Democratic senators questioned Dr. Ford themselves. Other than Dr. Ford’s opening statement, when she described in detail the sexual assault claim, the biggest moment of the hearing came when Senator Dick Durbin (D-IL) asked Dr. Ford how certain she was that it was Judge Kavanaugh who assaulted her, as two separate men have come forward to say that it was them, not Judge Kavanaugh, who assaulted her in 1982. She said she was “100%” sure it had been Kavanaugh.
Dr. Ford also spoke at length that she tried to make her story known before Judge Kavanaugh was nominated. Reporters and members of Congress, she said, did not respond to her comments and tips in time. This is contrary to the Republican narrative that the allegations were “sprung” upon them at the last minute to try and stop Judge Kavanaugh’s nomination, to use language Judge Kavanaugh himself used repeatedly in his afternoon testimony.
During her testimony, Dr. Ford was collected and calm for the entirety of her time in the hot seat. Her voice wavered and, at times, she blinked back tears, but she maintained her composure. At points, she appeared genuinely sorry she could not be more specific for the Committee. CNN Political Commentator Chris Cillizza described her as “decidedly credible.” He continued, “She struck me as a normal person thrust into an impossible situation. Someone who was doing what she believed to be the right thing.”
When the Committee took a lunch break, Fox News’ distinguished senior journalist, Chris Wallace, said “This was extremely emotional, extremely raw and extremely credible and nobody could listen to her deliver those words and talk about the assault and the impact it had had on her life and not have your heart go out to her. She was obviously traumatized by an event.”
“I don’t think we can disregard Christine Blasey Ford and the seriousness of this,” Wallace said.
Judge Kavanaugh began his testimony just before 5 PM Eastern. Whereas Dr. Ford was calm, Judge Kavanaugh was indignant with rage, shouting most of his opening statement, banging his hand on the table, and breaking down in tears several times.
In his opening statement, Judge Kavanaugh said that Dr. Ford’s claim was a “calculated and orchestrated political hit.” He went on to say, “I will not be intimidated by withdrawing from this process. Your coordinated and well-funded effort to destroy my good name and destroy my family will not drive me out. You may defeat me in the final vote, but you’ll never get me to quit. Ever.”
Judge Kavanaugh added that he felt the allegations had “destroyed my family and my good name. This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election.”
The calendar entry says, “Go to Timmy’s for skis w/ Judge, Tom, PJ, Bernie, and Squi.” The final name, “Squi,” is the nickname for another of Kavanugh’s friends. These are all individuals that Dr. Ford said were present at the party where she was assaulted, and the location of “Timmy’s” corresponds with her statement that the assault occurred at a home “without any parents present.”
After Mitchell’s questioning of the July 1st entry, Republican Senators chose to question Judge Kavanaugh themselves, instead of using the special counsel and sexual assault prosecutor they hired to, as Senator Grassley said, “de-politicize the process and get to the truth, instead of grandstanding.”
Senator Lindsey Graham (R-SC) was the first Republican Senator to question a nominee directly today. He used his time to attack the Democratic members of the Judiciary Committee for orchestrating “a sham” and hoping to “destroy” Judge Kavanaugh’s life, as well as telling Republicans “if you vote ‘no’, you’re legitimizing the most despicable thing that I have seen in my time in politics.” He continued by saying that Judge Kavanaugh was as much a victim as Dr. Ford.
The remaining Republican Senators scarcely questioned Judge Kavanaugh, instead expressing their sympathies for having to face such allegations.
Judge Kavanaugh sparred with the Democratic members of the Committee, shouting at Senator Dianne Feinstein (D-CA), Senator Durbin, and Senator Chris Coons (D-DE) as they attempted to question him about the FBI potentially reopening an investigation into his background to flesh out Dr. Ford’s claims. Judge Kavanaugh said that he believed that there had been enough of a delay in the process and that the Committee was doing an investigation.
Senator Cory Booker (D-NJ) noted the fact that Dr. Ford’s friend Leland Keyser, whom Judge Kavanaugh used as an example of someone who said that the assault never happened, actually said that, while she did not remember the evening specifically, she believes Dr. Ford.
Many students across the campus watched the hearings today. In the Gallo Café of the Roger and Francine Jean Student Center Complex, both televisions were on news coverage of the hearings and many students, administrators, professors, and members of the monastic community, made note of the proceedings. Walking across campus this afternoon, many students could be overheard discussing the hearings, or recent Tweets about the hearings.
The Hilltopper reached out to many students for comments, but most declined to comment, citing the personal nature of the topic.
One student who did choose to comment was Ed Frankonis, ’19. Frankonis said that he watched Judge Kavanaugh’s testimony and that he “was not impressed by how emotionally charged [Judge Kavanaugh] was.”
Nicolette Theroux, ’19, said that she only saw a few minutes of the hearing and didn’t feel informed enough to comment on their substance but added: “All I know is it took a lot of strength and courage for Dr. Ford to take the stand today and I’m grateful she did so.”
The Hilltopper reached out to Timothy Madsen, ’19, Chairman of the Saint Anselm College Republicans for a comment. Madsen replied that neither he nor the College Republicans “have any comment to make.” The Hilltopper also reached out to Olivia Teixiera, ’20, President of the Saint Anselm College Democrats, but she did not return the request by the time of publishing.
A vote is expected on Judge Kavanaugh’s nomination from the Senate Judiciary Committee tomorrow. A nomination does not have to receive a favourable recommendation from the Committee in order to proceed to a vote before the full Senate, which is expected to occur early next week. Justice Thomas, for example, did not receive a favourable recommendation in 1991 but was confirmed to the Supreme Court in a 52-48 vote.
Many reports indicate that there are four Republicans who are undecided on Judge Kavanaugh: Senator Susan Collins (R-ME), Senator Jon Kyl (R-AZ), Senator Lisa Murkowski (R-AK), and Senator Jeff Flake (R-AZ), and one Democratic Senator, Senator Joe Manchin (D-WV).
Today, The Hilltopper issues its first official editorial. In an unusual step, we are not speaking with a unified voice about a campus issue of note. We are instead writing about a national issue of grave importance that will directly impact the lives of every person who works, teaches, or learns at Saint Anselm College.
After the retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump announced he would fill Kennedy’s important seat with Brett Kavanuagh, a jurist of the United State District Court of Appeals for the District of Columbia Circuit.
Rather than evaluate Kavanaugh’s nomination on solely his judicial experience, as some have done, or solely his judicial leanings, as some have done, The Hilltopper chose to evaluate Judge Kavanaugh’s record and the answers he gave during his confirmation hearings and decide whether or not he fulfills the ten Benedictine Hallmarks and Core Values that help to define what it means to be “Anselmian.” Those ten values are love, prayer, stability, conversatio, obedience, discipline, humility, stewardship, hospitality, and community. It is the opinion of The Hilltopper that in five of these ten values, Judge Kavanaugh falls dramatically short.
The first value is love, defined as the love of Christ and neighbor. Anthony Kennedy, whom Kavanaugh is nominated to replace, has a conservative-leaning judicial philosophy, but it is one rooted in love of Christ and neighbor. With only one notable exception – and it is certainly a large exception – Anthony Kennedy has voted to advance civil rights. On issues like affirmative action, Kennedy’s record is mixed but his important vote in Fisher v. United States (2016), shows it was not the principle of affirmative action that Kennedy objected to but rather the legal justification. In Obergefell v. Hodges (2015), Kennedy cast the deciding vote to guarantee protection for same-sex marriage under the Equal Protection Clause, showing a respect and love for queer neighbors.
When it comes to showing a love for all of his neighbors, Brett Kavanaugh falls short.
The Hilltopper does not pretend to have an intimate knowledge of Kavanaugh’s prayer life, nor do we find “stability” an applicable value in this context.
We do, however, believe that the Kavanaugh nomination falls short in other hallmarks and values of the Benedictine traditions.
A respect for judicial precedent is not only essential to a judicial philosophy of integrity, it is also similar to the Benedictine hallmark of obedience. Benedictine monks are asked to listen to their community, much as one might expect a good judge to listen to the legal community and his judicial forebears, who decided the right of a woman to make her own reproductive health care decisions is implicit in the Constitution.
Kavanaugh has purported to respect precedent. When grilled about his beliefs over Roe v. Wade (1973), Kavanaugh time and time again referred to the fact it is precedent. When Senator Susan Collins (R-ME) said that she was concerned over Kavanaugh’s philosophy on choice, he reaffirmed that he believed Roe was “settled law.” However, when pressed in his confirmation hearings, Kavanaugh refused to rule out overturning Roe. Supreme Court candidates of all political persuasions traditionally avoid hypotheticals, and that is to be understood. We don’t want potential justices locked into deciding a case before hearing all of the facts. However, Kavanugh’s commitment to Senator Collins appears to have been a lie.
In an email from Kavanaugh’s time in the Bush Administration, Kavanaugh objected to referring to Roe as “settled law.” Stating in full, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”
Understanding precedent and its importance is essential to the judicial process. Of course, some Supreme Court cases are wrongly decided, like the infamous Dred Scott case that defined African-Americans as less than a human. However, cases in need of being overturned are rare. It’s why so many people were appalled when the Supreme Court’s decision in Janus v. AFSCME (2018) overturned the Court’s ruling in Abood v. Detroit Board of Education (1977).
The current Court has shown an interest in overturning precedent, even though many of the justices, like Kavanaugh, claimed to respect it.
There is even reason to believe that Kavanaugh is willing to go against precedent. In the DC Circuit, he has not restrained from attempting to unravel judicial precedent, even though he has claimed to have the utmost respect for it. In Coalition for Responsible Regulation v. EPA (2012), Kavanaugh sought to undo not one but two Supreme Court rulings.
Kavanaugh’s wholistic record on the environment is problematic beyond the aforementioned ruling.
Another Benedictine hallmark is that of stewardship. Deeply rooted in the Benedictine, and therefore, the Anselmian, tradition is a respect for creation and a concern for that creation. Some prominent figures have lived this out, like Saint Francis of Assisi. Brett Kavanaugh, however, has shown anything but a respect for creation. Interestingly enough, few nominees have ever had a history of dealing with cases pertaining so directly to God’s signature creation, the planet, as Kavanaugh does.
The League of Conservation Voters has done an extensive account of Brett Kavanaugh’s approach to creation. The League points to not one or two but 17 cases in which Brett Kavanaugh sided against the environment. Some might say that a legitimate interpretation of the law led Kavanaugh to the conclusion he made, but Kavanaugh was almost always in the minority in these opinions. Usually, the Supreme Court disagreed with Kavanaugh’s interpretation.
In addition to Kavanaugh’s disregard for stewardship is his disregard for hospitality or, openness to the other. Frequently, students of Saint Anselm College are told of the importance of “Benedictine hospitality” that makes our campus so unique. Tour guides tout our emphasis on openness and inclusivity, using their words and actions to demonstrate that we are a college that is more than congenial or polite but truly welcoming.
Brett Kavanaugh’s judicial philosophy lacks any semblance of hospitality. One may say that this is perfectly acceptable, that the law should be cold and void of an individual’s own passions. The Hilltopper does not claim that the personal emotions and feelings of a justice should enter their judicial decisions, but we do see a stunning disregard for “the other,” in Kavanaugh’s approach to issues like reproductive rights, voting rights, and affirmative action. We further believe that a concern for “the other” is essential to a fair judicial system. If the law will not stand with “the other,” who will?
It is hard to imagine that a nominee who excludes love of neighbor, obedience, stewardship of creation, and hospitality to the other can truly fulfill another core tenet of Benedictine communities, the word so familiar to Saint Anselm students: conversatio. How can a good life be so lacking in these critical hallmarks?
We recognize that in terms of discipline and community, Brett Kavanaugh has proven himself to be Anselmian. He has dedicated his life to the careful consideration and study of the law, and he has chosen to do so not to enrich himself but to serve the common good. We admire the nominee in these respects.
However, of the eight values on which we attempted to evaluate Mr. Kavanaugh’s nomination – again, excluding prayer and stability – we found his nomination to be thoroughly wanting in five essential areas: love, obedience, stewardship, hospitality, and conversatio.
And in a community where something as small as holding the door for the person behind you is valued, how can we truly call a man “Anselmian” when he refuses to shake the hand of a parent who lost his child to gun violence?
Some will challenge The Hilltopper’s decision to issue its first editorial on the Kavanaugh nomination instead of on a pressing campus matter. We recognize this concern, but we cannot emphasize enough how much the Kavanaugh nomination will impact those in the Saint Anselm community. Whether it is the nursing student who may see changes in how they can interact with their patients, or a future student of color who may have obstructions created in the college admission process, or the Benedictine monks who will be forced to preach about love and hospitality in a nation that no longer seems to value these tenets of our shared Anselmian nature, the people of Saint Anselm College will be deeply affected by this judicial confirmation. Not only that, we will be worse for it.
The Hilltopper encourages all students to make themselves aware of the Kavanaugh nomination and its consequences. We further urge all those in our community who share our concerns to contact their legislators.
The above piece is written on behalf of The Hilltoper editorial board. It expresses the opinion of that board, not necessarily the opinion of individual writers for the paper. When writing the piece, the board consulted documents published by Benedictine University and Saint Anselm College.
Featured image by Doug Mills of The New York Times.
This morning, President Donald Trump’s second nominee to the Supreme Court sat down in front of the Senate Judiciary Committee for the next step of his confirmation process.
Judge Brett Kavanaugh, a judge on the Court of Appeals for D.C., was appointed by President Trump in July 2018 to fill the seat on the Supreme Court currently held by Justice Anthony Kennedy, the longest-serving of the current justices. Kennedy was seen by all Supreme Court observers as the swing vote on the Court, providing decisive votes on cases related to healthcare, same-sex marriage, and a woman’s right to choose.
Judge Kavanaugh’s career is rich in conservative ideology, which many worry will throw off the delicate balance of the Supreme Court that Kennedy has held in check for more than thirty years. One of Kavanaugh’s first positions out of law school was a fellowship with then-Solicitor General Ken Starr, who led the legal case in the impeachment trial against President Bill Clinton. Kavanaugh was the chief author of Starr’s report on Clinton’s conduct with Monica Lewinsky. Kavanaugh went on to serve as the Staff Secretary in the White House of George W. Bush, where he had great control over which papers and files went into and out of the Oval Office. It was Bush who nominated Kavanaugh to the Court of Appeals for D.C. in 2003, but Kavanaugh’s nomination was caught up in a slew of delayed judicial nominations during the Bush Administration and he was not confirmed for the Court until 2006, when he received a 57-36 vote with 4 affirmative votes from Democrats, only one of whom is currently serving in the Senate (Senator Tom Carper of Delaware).
Today’s confirmation hearings did not feature Judge Kavanaugh answering any questions from the Judiciary Committee, as first days rarely do. As committee chairman Chuck Grassley (R-IA) began the process of initiating the hearings, a slew of high-profile Democratic senators attempted to delay the proceedings. The main concern of Senate Democrats, as Senate Minority Leader Dick Durbin (D-IL) explained during his allocated time, is that there is a 35-month gap in Judge Kavanaugh’s documents provided to the Judiciary Committee. The gap covers most of Judge Kavanaugh’s time as White House Staff Secretary under George W. Bush, which Judge Kavanaugh has said was a critically formative time in his career.
Senators Kamala Harris (D-CA), Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) all made motions to delay the hearing to give Senators more time to read more than 40,000 pages of documents that were released less than 12 hours before Senator Grassley delivered his opening statement. Many of the Democratic Senators who tried to the delay the hearing are considered to be frontrunners for the 2020 election.
Many of the early opening statements from Republican members of the Committee were drowned out by protestors, with no fewer than ten protestors standing up at separate points during the morning. Protesters shouted towards the senators about their fears of Judge Kavanaugh’s conflicting comments on whether or not a sitting president can face legal proceedings (he wrote that he believed President Clinton could when he worked for Starr’s investigation but wrote that President Bush could not when he was on the Court of Appeals), the fate of the right of a woman to choose whether or not to have an abortion, access to health care, and the sanctity of same-sex marriage. These concerns were echoed by Democratic members of the Judiciary Committee, with Senator Harris telling Kavanaugh that she was not sure that a Justice Kavanaugh would treat everyone equally.
Republicans on the Judiciary Committee largely praised Judge Kavanaugh’s career and directed their attacks to the Democratic side of the aisle. Senator Ted Cruz (R-TX) lambasted Democrats for asking for more documents to be released, arguing that more pages from Judge Kavanaugh have been released than any other Supreme Court nominee. It is true that more pages of Judge Kavanaugh’s records have been released. Still, those released do leave large swaths of his career uncovered and more than 40,000, have been released in the last 24-hours.
Senator Lindsey Graham (R-SC) used his opening statement to argue that opposition to Judge Kavanaugh’s nomination is rooted in anger over the outcome of the 2016 Presidential election, when Secretary of State Hillary Clinton lost to President Trump. Senator Cruz echoed Senator Graham’s comments.
The only Republican on the Judiciary Committee who questioned Judge Kavanaugh’s record was Senator Jeff Flake (R-AZ). Senator Flake warned Judge Kavanaugh to expect hard questions in the coming days about his positions on executive privilege and the rights of the president. He cited President Trump’s tweet from Monday about Attorney General Jeff Sessions as a cause for concern over the White House. Senator Flake is retiring at the end of the current Senate term.
Senator Ben Sasse (R-NE), a common critic of the president, countered Senator Flake and argued that the only question that needed to be asked of Judge Kavanaugh was if he had the character and temperament to serve as a Supreme Court Justice.
Just before 5:00 PM, Judge Kavanaugh began to deliver his opening statement. He played off of the comments of Senator Sasse, speaking about his friends and his family. He highlighted that he coaches his daughters’ basketball team and that he volunteers in a food pantry on the weekends. He also talked about his long record of attendance at various games of the Baltimore Orioles and Washington Redskins with his father. Judge Kavanaugh did not address any potential judicial opinions or political issues during his opening statement, which is to be expected.
Democrats appear to be limited in their ability to do anything other than delay Judge Kavanaugh’s confirmation. They do not have the numbers to reject the nomination on their own after Senate Majority Leader Mitch McConnell (R-KY) lowered the vote threshold for Supreme Court nominees last year during the confirmation of Justice Neil Gorsuch. There are only two Republican senators who are considered to be possible to vote against Judge Kavanaugh, Senator Lisa Murkowski (R-AK) and Senator Susan Collins (R-ME). Both Senators have met with Judge Kavanaugh privately and seem less likely to vote against him after doing so, having received private assurances from Judge Kavanaugh that he will protect Roe v. Wade (1973).
Many observers, however, are not confident that Judge Kavanaugh will protect Roe, Planned Parenthood v. Casey (1992), or Obergefell v. Hodges (2015) if the issues come up during his time on the Supreme Court, which they likely will. CNN legal commentator Jeffrey Toobin predicted that within five years of Judge Kavanaugh potentially joining the Supreme Court, more than 1/3rd of the country could have banned or severely restricted access to abortions and reproductive health services.
Senator Grassley has said that the hearings may continue through the weekend in order to expedite Judge Kavanaugh’s nomination.