Outside of the partisan bubbles, legal observers concede that Democrats dropping the sexual misconduct allegations against Judge Brett Kavanaugh at the 11thhour should make Republicans furious. At the same time, they think the GOP should have given ample time to investigate these claims, not establishing an artificial deadline.
George Washington Law Professor Jonathan Turley has an op-ed in The Hill, where he lays out his concerns about the probe, noting that we need an end to this drama, not a prolongation of it. Also, he notes the dangerous precedent that Democrats are setting by warning in not so uncertain terms that even if Kavanaugh is confirmed, they’re going to investigate and possibly impeach him should they have a successful 2018 midterm election. Turley warns that such a precedent would offer a green light for Congress to intimidate and retaliate against judges they don’t like. Judges, whose concerns were already addressed in confirmation hearings, could be hauled back before Congress for the same charges, heavily politicizing the process and this branch of government that was supposed to be isolated from such shenanigans. Sadly, ever since Joe Biden was Senate Judiciary Committee chair, the process has become political.
Turley also warns that even liberal justices haven't been as truthful, referring to the half-baked theories from the liberal blogosphere that Kavanaugh committed perjury in these proceedings. He noted that Justice Elena Kagan wasn't as forthcoming concerning her role in the Affordable Care Act. Should we hold tribunals for her?
Sheldon Whitehouse (D-R.I.) promised Kavanaugh that it does not matter if he is confirmed because “as soon as Democrats get gavels” the party will investigate and possibly impeach him. On the House side, Democratic representatives on the House Judiciary Committee, including Ted Lieu (D-Calif.), Hank Johnson (D-Ga.), Luis Gutiérrez (D-Ill.), Pramila Jayapal (D-Wash.) and Jerry Nadler (D-N.Y.), have declared that they will open up an investigation into Justice Kavanaugh as soon as they regain control over the House.
In other words, neither confirmation nor death will prevent a day of reckoning once power shifts hands. The implications are chilling for a system designed to insulate justices from political threats or retaliation.
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The pledge to effectively have a do over is playing well with Democratic voters even though the odds of a successful impeachment are remote. Being tossed in the Potomac may be one of the few indignities not awaiting Kavanaugh if such post-confirmation hearings are ordered. It would create precedent for justices to be retroactively investigated on allegations raised but rejected in their confirmations.
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Whitehouse was suggesting that a potential Democratic majority after midterms would call a Justice Kavanaugh to answer allegations that he was a serial rapist. The problem is that the Senate already has heard from the witnesses cited by Christine Blasey Ford and none corroborate her accounts, or even remember the party in question. This is not dispositive, since Ford said she told no one until many years later. However, she cannot remember the date or the specific location of the incident, or the identity of the person who drove her home after she fled the party.
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It seems highly unlikely that Democrats would be as motivated in promising to pull back Justices Sonia Sotomayor or Elena Kagan before Congress on discrepancies in their records. Democratic nominees have faced allegations of untrue statements before Congress without the threat of post-confirmation investigation. Some advocates objected that Kagan denied being asked for or offering her opinion on the “the underlying legal or constitutional issues related to any proposed health care legislation” or “the underlying legal or constitutional issues related to potential litigation resulting from such legislation” while she was solicitor general of the Justice Department during the Obama administration.
Later, critics argued that newly disclosed documents showed that, after the Affordable Care Act was enacted, Kagan was consulted on the challenge to that law and may have forwarded some possible arguments to use in litigation.
So, while the Left demands that Democrats continue the delay tactic to slowly bleed this nomination to death, keep in mind that should they regain the majority, they probably won’t be there for long, especially since their far left agenda isn’t where middle America, or anyone with cognitive function, is on the issues. The GOP will be back, and you bet we’ll be waiting in the tall grass, ready to take a liberal judicial scalp of our own. Please Democrats, keep doing this because, after this Kavanaugh drama, I think I want several scalps.
Now, lowering the temperature, these Democratic actions on Kavanaugh expose the irony of the party that has prided itself in being normalizers in the current political situation, and as staunch defenders of institutional integrity. Creating a precedent where judges can be intimidated and be threatened with retaliation doesn’t sound like that’s honoring those principles. Then again, we’re talking about Democrats—the only principles they honor are those relating to abortion.
