Editorial | Kavanaugh waits in the wings

Editorial | Kavanaugh waits in the wings

There's considerable sound and fury surrounding the confirmation hearingsfor Brett Kavanaugh, President Donald Trump's nominee to fill an impending vacancy on the U.S. Supreme Court.

Federal appeals court Justice Brett Kavanaugh is scheduled to appear Tuesday before members of the U.S. Senate Judiciary Committee to answer questions about his career history and judicial philosophy.

From all appearances, there won't be much in the way of real fireworks, even though Democrats are rabidly opposed to Kavanaugh's nomination. Thanks to a terrible self-inflicted wound (eliminating the filibuster rule on judicial nominees when they had the majority) and their current minority status, Democrats appear to lack the votes either to block or defeat Kavanaugh's nomination.

But that doesn't mean there won't be some harsh words exchanged or hard feelings lurking just beneath the surface.

That's because the judicial confirmation wars that began with appeals court Justice Robert Bork's defeated nomination in 1987 continue unabated.

Much is at stake in this confirmation process, although not as much as some suggest.

Kavanaugh, a current member of the District of Columbia Court of Appeals, is slated to fill the vacancy created by the upcoming retirement of long-serving conservative/libertarian Justice Anthony Kennedy.

Liberals embraced Kennedy for his opinions to expand homosexual rights on such issues as same-sex marriage. More recently, they bitterly denounced his jurisprudence after he came out on the wrong side — that is the conservative side — of some controversial cases involving public employee unions and gerrymandering.

That, of course, is why replacing Kennedy with Kavanaugh isn't that much of an ideological change, even though it's a big change in age.

What would have been a dramatic ideological shift is if Democrats had won the confirmation of liberal appeals court Justice Merrick Garland, one of Kavanaugh's colleagues on the D.C. court, to replace conservative Justice Antonin Scalia following Scalia's untimely death in February 2016.

But Garland's prospects for confirmation went down in flames when, astoundingly, Democrat Hillary Clinton found a way to lose the presidential election to President Donald Trump.

Ultimately, Trump nominated current Justice Neil Gorsuch to fill the Scalia vacancy, and he was confirmed over the objections of most Senate Democrats.

The public, most likely, will not see or hear of much of substance during Kavanaugh's testimony, particularly in his Q&A with committee members. He will, undoubtedly, follow the examples set by Gorsuch as well as Justices Sonia Sotomayor and Elena Kagan and decline to answer legally loaded questions that would call for him to state his views on controversial legal issues likely to come before the high court.

It's unfortunate in the extreme that judicial nominees feel they cannot participate in substantive discussions on issues of law. But the whole process has become so politicized that judicial nominees of presidents of both parties feel that to be candid is to invite disaster.

Having said that, it's clear that Kavanaugh is an outstanding choice. He's excelled as a lawyer, an appeals court justice and a professor of law. Further, his character appears to be beyond reproach.

In the distant past, votes to confirm nominees of Kavanaugh's quality were nearly unanimous — Justice Scalia (nominated by President Ronald Reagan) and current Justices Ruth Ginsburg and Steven Breyer (nominated by President Bill Clinton).

But times have changed and not for the better. That's why Kavanaugh can expect a rough ride before he arrives at his intended destination as the newest justice on the nine-member court.

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