Mark Western: Kavanaugh Hearing Makes a Mockery of the Supreme Court


Supreme Court nominee Brett Kavanaugh talks on day two of his confirmation hearing on Wednesday. MUST CREDIT: Washington Post photo by Melina Mara

This guest post was submitted by Mark Western, a Fargo lawyer who occasionally writes on the intersection of law and politics in North Dakota.

I am already tired of the hype and posturing. Mostly because it’s making a mockery of the job of a Supreme Court Justice.

This week is shaping up to be a made for TV spectacular for legal and political junkies around the United States– how many times will protesters interrupt the talk-fest known as the Brett Kavanaugh Supreme Court Confirmation Hearings? How many times will Judiciary Committee senators interrupt each other’s opening statements? How many gallery spectators will be arrested by Capitol Police for shouting obscenities at Judge Kavanaugh? How many times will democratic senators interrupt Judge Kavanaugh’s answers to try to create a gotcha “moment” which will turn into a social media post and fundraising appeal to their base? Does anyone really believe that the Hearings will change anyone’s mind about anything?

Ultimately,I predict that the Hearings are likely going to end up being a nothing-burger in terms of actual new substance. Judge Kavanaugh has been on the D.C. Circuit Court of Appeals for more than twelve years. He has published more than 300 judicial opinions. Check out a non-partisan appendix and summary of them here. He has voted in another 1200 cases. Let’s not over hype this- selecting a Supreme Court Justice is a pretty big deal. It only happens once every few years, but it’s pretty tough to sell me on the idea that Kavanaugh is not being adequately vetted. Either you agree with his judicial philosophy or you don’t.

I think that it is a very sad state of politics where a judicial nominee’s “performance” in a televised game show with a gavel is being judged to be as important or more important than the actual body of their judicial opinions. Now I’ve never been a supreme court justice, and I don’t expect Donald to call me this fall if things fall apart for Mr. Kavanaugh, but I am pretty sure that most supreme court “justicing” takes place at one’s computer writing opinions on MS Word and reading previous precedents of courts, rather than a week-long episode of judicial Survivor. Let’s just calm the three ring Hearing circus down. It’s a sideshow.