Op-Ed

Democrats Keep Moving Goal Posts on Brett Kavanaugh's Nomination

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Senate Democrats are trying to use the magician’s trick of misdirection to cast doubt on Judge Brett Kavanaugh’s fitness for the Supreme Court.

It won’t work.

Every nominee to every position in the executive and judicial branches has a record — his or her unique combination of professional and personal activities. Parts of that record might be relevant to one position; other parts, to another position.

Common sense suggests that the Senate should give the most attention to the parts of Kavanaugh’s record that are most relevant to his Supreme Court nomination.

Kavanaugh’s professional record includes a few years in private practice, four years in the Office of Independent Counsel, five years in the White House, and 12 years as a judge on the U.S. Court of Appeals for the D.C. Circuit. His White House service, from 2001 to 2006, involved work in the White House Counsel’s Office and three years as staff secretary, a position involving the review of many sensitive documents.

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President George W. Bush first nominated Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit in July 2003, and the Judiciary Committee held a hearing on April 27, 2004. Democrats forced the nomination to be returned to Bush, who renominated Kavanaugh in February 2005 and again in January 2006. The Judiciary Committee, under a different chairman, held another hearing on May 9, 2006.

His nomination was finally confirmed on May 26, 2006, more than 1,000 days after it was first made.

That history is important. The Senate had Kavanaugh’s record from the executive branch, including his White House service, to examine for more than three years and devoted not one, but two hearings to that record.

At the second hearing, Sen. Dick Durbin, D-Ill., said that they were scrutinizing Kavanaugh’s executive branch record because “we have to rely on what you have done with your life and … when it comes to legal work, there is not much to turn to.”

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The American Bar Association apparently disagreed, giving Kavanaugh its highest “well-qualified” rating.

Sen. Dianne Feinstein, D-Calif., was even more pointed: “Without a record either as a trial lawyer or as a judge, it’s very difficult for some of us to know what kind of a judge you would be.”

That is, after all, the most important question.

Within hours of President Donald Trump’s announcement of the Kavanaugh nomination, Senate Minority Leader Chuck Schumer, D-N.Y., said that “the American people deserve to know what kind of a justice President Trump’s nominee would be.”

Yes, they do.

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The problem that Democrats claimed they had in 2006 is a problem no more. Kavanaugh has been a judge for 12 years — as long as his private practice, independent counsel, and White House work combined.

The best way to determine the kind of Supreme Court justice he would be is to examine the kind of appeals court judge he has been.

Senate Democrats want people to think that documents related to Kavanaugh’s executive branch service are relevant to his judicial branch nomination, that those documents have never before been examined in the context of his judicial nomination, and that there is really nothing else to rely upon.

Each of these claims is misleading at best, patently false at worst.

The Senate has an important role in evaluating Kavanaugh’s qualifications for serving on the Supreme Court. Unlike in 2006, however, Kavanaugh now has a long, distinguished, and highly relevant judicial record to examine.

That record spans more than 300 opinions authored by Kavanaugh, including 11 dissents subsequently adopted by the Supreme Court. Those opinions provide what any senator needs to know in determining how to vote on his nomination.

As of today, two weeks after Kavanaugh’s nomination was announced, no Democrat has met with the nominee. Those who insist that the least relevant parts of his record, those that have already been scrutinized, are more important than the most relevant part, which hasn’t been reviewed, have some explaining to do.

Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.

A version of this Op-Ed previously appeared on The Daily Signal website under the headline, “Democrats Keep Moving Goal Posts on Brett Kavanaugh’s Nomination.”

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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