After writing a couple of pieces on the Brett Kavanaugh confirmation hearings, I stopped writing about it but kept watching. I saw almost every minute (and that was a lot of minutes). It was mostly quite boring. Kavanaugh was well-schooled in the modern bipartisan practices, post-Robert Bork, which is to use various reasonable-sounding excuses to say little of substance and especially nothing that could cause controversy.
It seems overwhelmingly likely that all or almost all Republicans will vote aye on confirmation and most or all Democrats will vote no. This didn’t used to be the way this worked, but now it is. (In fact, it used to be the norm that most Supreme nominees were confirmed unanimously, or nearly so.)
Barring surprises, Kavanaugh, a mere snip of a lad of 53, will serve for several decades. Appointing them young is part of the new normal.
And it’s even more certain that Kavanaugh will vote what is essentially the Republican line on the court, which portends a great many 5-4 party-line decisions until something changes. Another part of the emerging new normal is that appointees of Republican presidents will try to arrange their retirements to occur during the tenure of future Republicans, and the same for Democrats.I’m pretty sure that Sen. Amy Klobuchar and Cory Booker were right in their expressed suspicions that one of the great attractions of Kavanaugh, for the current incumbent in the White House, was the fairly extreme position Kavanaugh has developed on the power of presidents, especially the power to not be held accountable for violations of the law. Perhaps we’ll find out.
I assume that the newest wrinkle of the new normal is that if vacancies occur when the Senate is controlled by a party other than the president’s party, no one will be confirmed and the vacancy will remain open. (The Republicans started that with their unprecedented refusal to even hold a hearing on President Barack Obama’s nomination of Merrick Garland in 2016. Or perhaps there’s a Republican version of that history in which it was the Dems who started it. As I say, I expect it to become normal.) Or maybe there will be deals made. The old normal is dead. All hail the new normal. Or don’t hail. I don’t much care for it.
By the way, the old normal wasn’t very old. I did a history piece on Supreme Court nominations, full of my usual historical tidbits, a couple of months ago. If you missed it, it’s available here (and I guarantee you will find some things that surprise you, unless you’ve already read it).
But in case you don’t look it up, I’ll just mention that there were no hearings at all for Supreme Court nominees before World War I, and the first time the actual nominee testified at a confirmation hearing was 1939, and that nominee declined to answer the senators’ questions on any of his views.
As I have also previously argued, there’s something disturbingly undemocratic about a system in which unelected lifetime appointees are empowered to overrule the doings of all the elected branches. Supposedly, this is justified because they are simply enforcing the correct meaning of the Constitution, but that foolishness is harder to credit with each passing year.