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Senate Judiciary Committee Confirmation Hearing

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Brett Kavanaugh should not let himself be Borked in confirmation hearings: Ted Diadiun

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Supreme Court nominee Brett Kavanaugh arrived on Capitol Hill last week for a meeting with Senate Majority Leader Mitch McConnell of Kentucky as Kavanaugh began his rounds with key GOP senators prior to his confirmation hearing, which could begin next month. Ted Diadiun writes that Kavanaugh should follow the lead of Neil Gorsuch and refrain from sharing too much of his legal philosophy in case it's twisted by opponents and used against him, as Diadiun writes happened with Robert Bork.
Supreme Court nominee Brett Kavanaugh arrived on Capitol Hill last week for a meeting with Senate Majority Leader Mitch McConnell of Kentucky as Kavanaugh began his rounds with key GOP senators prior to his confirmation hearing, which could begin next month. Ted Diadiun writes that Kavanaugh should follow the lead of Neil Gorsuch and refrain from sharing too much of his legal philosophy in case it's twisted by opponents and used against him, as Diadiun writes happened with Robert Bork. (Susan Walsh, Associated Press, File)

By Ted Diadiun, cleveland.com

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tdiadiun@cleveland.com

CLEVELAND -- The Brett Kavanaugh free-for-all is about to begin.

Actually, that's not quite accurate. The opposition is already in full-throated roar and the battle has been joined, even though President Donald Trump's second Supreme Court nominee has only just started his journey toward what some see as inevitable confirmation.

Kavanaugh spent last week in an opening round of courtesy calls on key Republican senators, and last weekend filling out questionnaires in preparation for his confirmation hearings that will likely begin next month. But within hours of his nomination, long before the first word of the hearings, Senate Minority Leader Chuck Schumer gathered all 10 Democrats of the Senate Judiciary Committee to lead a rally on the steps of the Supreme Court building in opposition of Kavanaugh's nomination.

And Democrats have lost no time in warning young women that the future of their abortion rights hangs in the balance.

All of that is premature, and almost surely wrong-headed. The right to abortion is firmly entrenched in our culture. No matter what Kavanaugh or any other justice might think of the tortured road that the Roe v. Wade majority took on the way to its decision, reversal is difficult to imagine. Only one justice on the current court, Clarence Thomas, has voted (with the minority) to overturn the Roe precedent.

But of course, that doesn't mean Kavanaugh's opposition will not do its best to frighten pro-abortion folks with that possibility.

Three things are guaranteed to happen during the confirmation hearings:

1. We won't learn much about what Kavanaugh thinks about Roe v. Wade, or any other individual case in which he did not participate.

2. The Democratic opposition will mount bitter demands for Kavanaugh to be more forthright and specific.

3. The hearings will be longer and more acrimonious than ever, as every member of the Senate Judiciary Committee, several of whom see themselves as presidential fodder and are eager for their moment in the national spotlight, engages with the nominee.

It surely would be instructive if Kavanaugh were to discuss his judicial philosophy in detail, both general and specific.

But the last time that happened was 1987, when Judge Robert H. Bork seized the moment to exercise the full measure of his formidable legal arsenal - thoughtfully (and, we now know, naively) answering every question thrown at him. However, Bork's effort to engage in a forthright and expository constitutional discussion was used against him in a cynical and dishonest political attack that turned public opinion against him and ultimately torpedoed his confirmation.

Bork painstakingly took the Senate Judiciary Committee through his thinking on why Roe v. Wade and several other Supreme Court decisions were not supported by the Constitution and were issues better left to the legislature.

His candor was rewarded with Sen. Ted Kennedy's infamous "Robert Bork's America" speech, which instead twisted Bork's nuanced explanations into a scurrilous and deceitful charge that "women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution ... and the doors of the federal courts would be shut on the fingers of millions of citizens ..."

Not one word of that was true. But it worked.

Given the history of such tactics, it is small wonder that Trump's first nominee, Neil Gorsuch, avoided being nailed down on specific cases other than those he himself decided.

Kavanaugh would be wise to do the same.

CNN's legal analyst Harry Enten put it right out there last Friday in a column headlined, "Democrats' best chance to bring down Kavanaugh: Bork him."

Enten expanded the term beyond its customary meaning: "To unfairly attack a candidate through systematic defamation or vilification." In his piece, he said that the Democrats' only hope is to make Kavanaugh so publicly unpopular that those senators who might be on the fence would feel personally vulnerable by voting for him.

Can the Democrats accomplish that? Kavanaugh appears to be a rock-solid jurist of high intelligence and character, with impeccable legal and ethical bona fides stretching back to his college days.

But so was Bork. If they can savage Kavanaugh's character, and mislead the public enough on his record or what he is likely to do on the court - and you can expect Schumer and his cohorts to do just that - then, sure.

The wafer-thin, one-vote GOP majority cannot survive one misstep or imprudent word.

At his confirmation hearing, Judge Bork wisely said that, "Federal judges are not appointed to decide cases according to the latest opinion polls." If judicial candidates "are treated as political candidates," he said, "the effect will be to erode public confidence and endanger the independence of the judiciary."

Schumer will absolutely try to pin the coming confirmation hearings to opinion polls rather than fealty to the Constitution.

It will be up to Kavanaugh to remain patient, impassive and temperate throughout the hearings. Then it will be up to the Republican majority to stand firm, and to confirm this essential addition to the Supreme Court.

Ted Diadiun is a member of the editorial board of cleveland.com and The Plain Dealer.

To reach Ted Diadiun: tdiadiun@cleveland.com

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Source : https://www.cleveland.com/opinion/index.ssf/2018/07/kavanaugh_must_keep_from_being.html

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