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September 20th, 2018

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A nomination that sounds like a rerun

Paul Greenberg

By Paul Greenberg

Published July 27,2018

A nomination that sounds like a rerun
Jabi Botsford for The Washington Post

He's just a political hack, his Democratic opponents say about Brett Kavanaugh. Which is what they were saying about him more than a decade ago when he was seeking a seat on the District of Columbia's circuit court of appeals. Back then his nomination by President George W. Bush was held up for a couple of years until diehard Democrats in the Senate agreed to a deal that let him take his seat on that appellate court. One of those diehards, Sen. Patrick Leahy of Vermont, predicts that this "will be a little bit different this time."

It sounds like Sen. Leahy is still nursing an old grudge and won't let it go. For there's no loser like a sore one. Republicans can hope that this fight will turn out the same way the old one did -- with a victory for their nominee. But that this time he'll win a seat on the highest court in the land.

Once upon that time long ago, Brett Kavanaugh worked with Kenneth Starr and his team to impeach President Bill Clinton, and showed they had every good reason to do so. And later Judge Kavanaugh would work to halt the contentious recount of votes in the presidential election of 2000 -- and then, after that election, served as an aide to President George W. Bush.

That's how things are done when partisanship moves both parties. And it definitely does. For let's not pretend that decisions of the federal judiciary are brought by constitutional storks. Quite the contrary. It was the country's greatest chief justice of the Supreme Court, John Marshall, who set the example.

"From 2006 to now," asks Sen. Lindsey Graham, South Carolina's sage contribution to the Judiciary Committee, "what kind of judge has (Brett Kavanaugh) been?" And answers: "He's been what I thought he would be." Which is a good one.

And what kind of jurist does the senator think his Democratic counterparts believe Judge Kavanaugh has turned out to be? "I bet you that he's been what they thought he would be." Who says committee hearings aren't revealing? Especially when it comes to revealing the power of our own passions and prejudices.



Now get set for a replay of those earlier hearings, only with higher stakes. History doesn't repeat itself, Mark Twain is reputed to have said, but it does rhyme. Sen. Charles Grassley, the grand old U.S. senator from the Grand Old Party who represents Iowa, has worked with his Democratic colleague, Dianne Feinstein of California, to draw up a list of bipartisan questions about Judge Kavanaugh's activities during that stage of his political/legal career. What could be fairer?

Democratic senators are warning that a new justice of the country's Supreme Court who would take the place of retiring Justice Anthony Kennedy would leave the high court without a swing vote to moderate/blur its opinions on key issues like abortion and the Affordable Care Act that has proven unaffordable. And the Democrats are already demanding copies of the emails, paperwork and work product in general that Brett Kavanaugh produced when he was working for President Bush, which could amount to hundreds of thousands of pages.

Back in 2010, wasn't that the method of operation used by Republicans in the confirmation hearings for Supreme Court Justice Elena Kagan? And surely what was sauce for the Republican goose back then is now a fit tactic for the Democratic gander. In the end, a bipartisan group of senators agreed to confirm a number of Bush 41's nominees for the bench. But they retained the right or maybe just the power to filibuster some of those nominations in "extraordinary circumstances." Which is just what they were preparing to do when President Barack Obama chose to nominate his solicitor general Elena Kagan to the high court.

It's a great game at which each of the parties excels and is likely to go on as long as nominations to the Supreme Court of the United States do. It's called politics.

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Paul Greenberg is the Pulitzer-winning editorial page editor of the Arkansas Democrat-Gazette.

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