Reuters: Kavanaugh's clerks may be a little too helpful

Is that possible? No, not really, but it’s a sign of the desperation of the Democrats that they’re clinging to this thin reed of hope in stopping the confirmation of Brett Kavanaugh to the Supreme Court. The argument, as presented by Reuters, is that defenses launched by Kavanaugh’s clerks of his record — especially in response to conservatives — have opened up new lines of attack for Senate Democrats in the confirmation hearings.

See if you can guess the flaw in this theory:

Christopher Kang, who worked in the Obama White House and helped with the nominations of liberal Supreme Court Justices Sonia Sotomayor and Elena Kagan, said he was surprised by some of the comments by Kavanaugh’s clerks.

“I think that is really striking. We would not have used clerks to talk about a judge’s judicial philosophy,” said Kang, who now works for Demand Justice, a liberal group that opposes Kavanaugh’s nomination.

Supreme Court nominees routinely try to avoid being pinned down during confirmation hearings on how they would rule on given issues, especially controversial ones like abortion. But some of the comments made by clerks, Kang said, will “make it harder” for Kavanaugh to fend off questions about whether he will rule conservatively on social issues.

Er, suuuuuuure it will. To believe that, one has to believe that Senate Democrats would never have thought to ask these questions in the first place. Democrats didn’t already have plans to make him “fend off” questions about abortion? Come on, man. They already have some remarks from Kavanaugh himself on Roe v Wade that they’ll press him to explain, along with out-of-context pull quotes from his voluminous track record on the court on a variety of issues, and in the Ken Starr investigation too Remarks from Kavanaugh’s clerks would be the confirmation-hearing equivalent of hearsay — admissible, perhaps, but also eminently dismissible.

It would go something like this:

SENATE DEMOCRAT: Your former clerk Roebert Roekiller said in an interview that you play Abortion Clinic Shutdown Bingo in your office.

JUDGE KAVANAUGH: I don’t have any control over what my clerks say, Senator, but I plan to judge each case on its merits and the law.

That might titillate the fever swamps, but it’s not going to convince any Senate Republicans to flip their votes to nay. That’s the only strategy Senate Democrats have left for stopping Kavanaugh’s confirmation, so they aren’t going to waste much time parsing out testimony from the clerks, mainly because it will likely make that strategy even more improbable to succeed. Kavanaugh has a remarkable show of unanimous support from these men and women, and they are succeeding in putting a human and positive face on this nomination. The more attention that gets drawn to their testimonials, the worse off Senate Democrats are in opposing Kavanaugh as it makes voting against Kavanaugh even tougher for Senate Republicans.

They may, however, keep pressing the “recusal” button to see if that works. CAP’s Neera Tanden sung a reprise of that chorus after today’s awful Trump-Putin presser:

The silence and lack of oversight from Republicans in Congress has also made them complicit. It cannot stand that Trump’s nominee for the U.S. Supreme Court could help him obstruct justice by ruling in Trump’s favor in proceedings stemming from the special counsel. The Senate should reject Judge Brett Kavanaugh, and his nomination should not even move forward until he pledges to recuse. The crime is still in progress, and the culprit is trying to appoint his own judge.

To call this nonsense is to underrate its silliness. The Kavanaugh nomination has nothing to do with Russia, but with few options for stalling confirmation, all Chuck Schumer & Co can do is toss everything up against the wall in the hope anything sticks with Rand Paul, Susan Collins, and/or Lisa Murkowski. However, they’re not going to stall a Supreme Court nomination over Trump’s foreign-policy failures, even if it might come up in any pending State Department confirmation hearings. Besides, judicial recusal is rare, especially at the Supreme Court, and only in cases with specific and direct conflicts of interest. There isn’t even a legal case against Trump at the moment, nor is there any indication that there will be — and even if there was, the mere fact of appointment does not constitute a conflict of interest.

Until Democrats figure out a way to appeal to at least one Republican Senator, nothing the clerks or Vladimir Putin say will help out, let alone open up “new” lines of attack on Kavanaugh.

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Jazz Shaw 7:31 PM on October 02, 2022