Brett Kavanaugh has all but wrapped up his confirmation hearing testimony, having met Spartacus without a Roman in sight yesterday. By most accounts he held his own under pointed, hostile, and occasionally incompetent questioning, especially the Kamala Harris flop last night. Today the hearing will feature outside witnesses and legal experts weighing in on Kavanaugh’s track record as Chuck Grassley brings this embarrassing carny ride to an exhausting stop.
Has any of this changed the odds of Kavanaugh’s confirmation? Senate Majority Leader Mitch McConnell tells Hugh Hewitt this morning that Kavanaugh gave “a virtuoso performance,” and that his confirmation later this month is assured:
HH: You’ve said many times that Judge Kavanaugh will be confirmed, and that your major power is controlling the calendar. So the question is when will he be confirmed?
MM: Before the end of September. He’ll be on board at the Supreme Court by the first Monday in October, which you and I both know is the beginning of the October term.
HH: Any doubt in your mind about that result?
MM: None whatsoever. I think any doubts anybody might have had have been dispelled by his virtuoso performance before the Judiciary Committee. I mean, it’s stunning. He’s just a stellar nomination in every respect.
“Virtuoso” and “stunning” might be overstating it just a bit, but it was certainly solid. Most of the “stunning” performances came on the other side of the dais, which were “stunning” in the sense of being beat over the head with a club. Even Hugh seemed to have a tough time with that level of praise, raising the question as to whether Kavanaugh was just a little too slick with his responses to questions about Roe v Wade:
HH: The Judge gave a lot of conversation with Amy Klobuchar, Senator Klobuchar and Senator Feinstein about precedence of precedence. And a lot of pro-life people thought they heard him say he is going to uphold Planned Parenthood V. Casey, and thus, Roe V. Wade. Did you hear that?
MM: I don’t think there’s any way to predict how any of these people are going to rule in the future. They’re all very careful not to make that kind of commitment in advance. It is a lifetime appointment, own purpose, so that people will exercise independent judgment. I have no idea how Judge Kavanaugh would ultimately rule on anything.
I didn’t hear precisely that, but it did seem like Kavanaugh was reassuring Klobuchar and Feinstein on how deeply entrenched Roe is. And that’s not an unrealistic point, either, as I’ve noted this week and earlier, too. One would have to dismantle Casey before getting to Roe, but more importantly, a district court would have to ignore both to produce a case that might get to the Supreme Court at all. Amy Coney Barrett wrote about “super-precedents” in the federal judiciary and how they operated to informally prevent the Supreme Court from having to ever reconsider them, and while she didn’t include Roe in her analysis, it qualifies. It won’t be impossible to overcome, but this week’s testimony does suggest that Kavanaugh might have too much judicial modesty for that kind of, er … activism.
Nevertheless, Kavanaugh’s rather innocuous memo on the topic of Roe and “settled law from the Bush administration has given Democrats another reason to pummel Susan Collins and Lisa Murkowski:
And Democrats and their outside-group allies began a new offensive aimed at Collins and Murkowski on Thursday, after the release of a 2003 email in which Kavanaugh edits an op-ed draft in order to raise doubts over whether the Supreme Court would respect the precedent of abortion rights. …
Collins said she hadn’t read the email herself, but that, based on what she knows about it, it might not be the bombshell Democrats are hoping it would be.
“I am told that he was editing an op-ed for clarity and was merely stating a fact that three judges on the court were anti-Roe,” Collins said. “If that’s the case then, and it’s not expressing his view, then I’m not sure what the point is.”
Collins said in a follow-up that she would review the Kavanaugh email over the weekend. She’s said she would oppose a nominee who demonstrates “hostility” to Roe v. Wade, but said that, after meeting privately with Kavanaugh in August, he had done nothing to make her think he was hostile and told her that the decision is “settled law.”
As she walked out of a GOP lunch, Murkowski declined to discuss the email. An aide said she hasn’t seen it and will review it over the weekend.
If both decided not to vote for Kavanaugh — which is highly unlikely, given this weak sauce — then red-state Democrats would lose some political cover for supporting Kavanaugh. It’s possible, perhaps, that Kavanaugh would only get 49 votes. It’s a whole lot more likely, however, that Collins and Murkowski will shrug this off and stick with Kavanaugh’s record as a judge.
In other words, virtuoso performance or not, McConnell’s almost certainly correct that Kavanaugh can start picking out the drapes for his new office. The final tally on his confirmation vote will probably be 55 ayes and 45 Spartacuses.
Speaking of which, will Cory “I Am Spartacus” Booker get nailed by the Senate Ethics Committee? Maaaybeee, McConnell says:
MM: Well, let me just say this. When you break the Senate rules, it’s something the Ethics Committee could take a look at. And that would be up to them to decide. But it’s routinely looked at the Ethics Committee.
HH: Would you support that being done expeditiously?
MM: Well, I don’t order, the majority leader doesn’t order the Ethics Committee to take matters up. They do it on their own initiative. This is an evenly-balanced committee, even number of Republicans and Democrats. But they have an obligation to look into violations of the Senate rules, and it wouldn’t surprise me if they did.
Meh. It turned out that, contrary to Booker’s middle-school dramatic antics, he didn’t actually reveal confidential material at all, so the only rule he may have broken was a committee rule. The best way to deal with Spartacus is probably to quit talking about him at all. This is, however, a close second:
On this day in 71B.C. the Thracian gladiator Spartacus was put to death by Marcus Licinius Crassus for disclosing confidential scrolls. When informed days later that in fact the Roman Senate had already publicly released the scrolls, Crassus replied “Oh, ok, my bad”.
— Marco Rubio (@marcorubio) September 7, 2018