So much for bombshells today. Not only did Cory Booker’s “Spartacus moment” fall flat, so did the one strategy that might actually have derailed Brett Kavanaugh’s confirmation. And in large part, both failed for the same reason — that legal analysis of a subject is not at all the same thing as expressing a policy choice.
As John noted earlier, the New York Times published an e-mail from Kavanaugh during his Bush administration tenure discussing whether Roe is settled law. Sen. Richard Blumenthal (D-CT) issued a dire if indirect warning to Susan Collins and Lisa Murkowski that Kavanaugh had lied to them and to the Judiciary Committee when he said he considered Roe “settled law”:
Senate Democrats are appealing to Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska to read a 2003 email in which Brett Kavanaugh says not all legal scholars refer to the abortion case Roe v. Wade as settled law.
Sen. Richard Blumenthal says he believes that Kavanaugh was talking about himself when he referred to legal scholars. He says, “the signs and signals are plain.”
Kavanaugh said Thursday he was not talking about his views but what legal scholars might say.
Blumenthal did not single out Collins and Murkowski by name, but mentioned pro-choice Republicans who are uncommitted on Kavanaugh.
When pressed on the memo by Dianne Feinstein, Kavanaugh pointed out that he was performing an analysis of current thought among conservatives on the issue, not his own personal views. He was asked to weigh in on a proposed argument for judicial nominees, Kavanaugh explained, and he wanted to make sure the argument was as precisely accurate as possible:
As part of the response, Kavanaugh reiterated his point from yesterday’s review of Roe as settled law. He astutely invoked the “Ginsburg rule” when asked by Feinstein to discuss whether he agreed with the decision, pointing out — as Ruth Bader Ginsburg did 25 years ago — that it would be inappropriate for a jurist to declare a position on any issue that might later come before the court. Otherwise, though, this was much ado over not much at all.
Susan Collins thinks so as well:
Collins dismisses Kavanaugh 2003 Roe email, noting “he was merely stating a fact, which is that three judges on the court” would vote overturn it. “If that is the case, and he was not expressing his view, then I’m not sure what the point of it is.”
— Igor Bobic (@igorbobic) September 6, 2018
It’s been tough to figure out what the point of all this has been, especially perhaps today. Cory Booker launched into self-promotional hysterics, claiming to be the new Spartacus, for revealing confidential memos that contained legal advice over policy debates rather than personal views, as lawyers tend to provide in all contexts. None of this has much to do with Kavanaugh’s performance on the judiciary, for which Republicans and Democrats alike have twelve years of work to discuss, debate, and determine support or opposition.
The fact that the histrionics mainly come over documents unrelated to Kavanaugh’s judicial work tends to prove the fact that Kavanaugh’s work as a jurist is unassailable. Whether or not he spent his years in the Bush administration as a passionate partisan — and the record revealed so far indicates not — Democrats simply can’t overcome Kavanaugh’s experience and depth on the DC Circuit Court of Appeals. That’s the reason why the histrionics keep increasing, and delivery on them keep decreasing.