Law & the Courts

Grassley’s Kangaroo Court

Senate Judiciary Committee Chairman Sen. Chuck Grassley (Joshua Roberts/Reuters)
He must not let Democrats delay the Judiciary Committee’s hearing or turn it into even more of a farce.

So now it looks like next Thursday.

On Judge Brett Kavanaugh’s manifestly meritorious nomination to the Supreme Court, what was supposed to be the vote out of the Senate Judiciary Committee this past Thursday now appears to be sliding into a hearing to be held next Thursday. Or, who knows, maybe a Thursday or two after that. Or maybe The First of Never — though even that would undoubtedly be postponed to The Twelfth of Never.

Delay, delay, delay. It is what the Democrats want and it is what the Democrats are getting. They took the measure of their opposition and figured the GOP would bring a knife to a gunfight. From the first day of the confirmation hearing, committee chairman Chuck Grassley (R., Iowa) ceded control of the proceedings to the minority — in particular, to its ever-harder-Left, mak show presidential primary contestants.

It’s a kangaroo court.

Understand, this is not about Christine Blasey Ford. She’s a tool — a quite willing tool, but a tool all the same. This is not even about the eminently qualified federal circuit-court judge Brett Kavanaugh — it would be no different regardless of which nominee President Trump selected in consultation with White House counsel Don McGahn, the Federalist Society, the Heritage Foundation, and the rest of the originalist, conservative legal community come of age. Democrats do not want a model of constitutional fidelity and judicial restraint elevated to the Supreme Court. End of story.

And who can blame them? Republicans did not want the eminently qualified federal circuit-court judge Merrick Garland to be elevated to the Supreme Court.

The only difference is that Republicans had the majority and the rules on their side. Now Democrats are out to prove that if you abuse the process until it becomes a circus, the rules don’t matter. The steroid effect of their media echo chamber can overcome any thin, fraidy-scared GOP majority.

Back in the Garland days of 2016, Republican control of the Senate meant there were civilized limits on opposition. The gentlemen were not willing to slander the gentleman as, say, a would-be rapist. But, in a stunning display of vertebrae, Republicans were willing to block the nomination, which they were legally entitled to do: They had the majority and nothing in the Constitution required them to vote on an outgoing Democratic president’s election-year nomination to fill the seat left vacant by Justice Antonin Scalia’s death.

Realize, too, that everyone in that political dispute acted politically. If Obama had been a first- or fifth-year president with a Democratic majority in the Senate, he would never have nominated then-63-year-old Garland, a moderate liberal as to whom the press could portray opposition as unreasonable. Obama would instead have nominated a 40-something progressive ideologue — a living, breathing judicial personification of “I won, you lost” ram-Obamacare-through-with-no-Republican-support politics. When Republicans whined, the press would smirk and say, “Hey, elections have consequences.”

Thus, the moral of our story should be:

Hey Dems, if you don’t like it, then go win control of the Senate fair and square, and all the dominion over the courts that comes with victory. Until then, cry me a river. We are living in the filibuster-free, confirmation-conveyor-belt system that you designed for President Obama after derailing impeccably suitable Bush nominees when you had the votes and the raw parliamentary power to do so. We are living in the “all is fair in love and judiciary warfare” world that you created.

It should go without saying that the Supreme Court should not be this important. If it were just a judicial tribunal, even the highest-ranking one in the nation, the only thing we would care about would be having its bench filled by high-quality, high-character legal talent. The justices’ politics and partisan affiliations would be irrelevant because they would be technicians applying law to narrow legal questions, not making law and deciding how 325 million people who did not vote for them should live.

But the Left has turned the High Court into an über-legislature for imposing on the country the social-justice-warrior policy agenda that they cannot ride to victory at the ballot box. The Supreme Court is arguably just as vital to them as winning the White House, because justices often outlast even two-term presidencies by a factor of four or five.

Democrats are willing to use any tactics to block conservatives from the Supreme Court and seat their own ideologues. The question is not “Fair or unfair?” It’s “Will it work?” Republicans always seem flat-footed in response because they underestimate how far Democrats are willing to go to win, how willing they are to destroy people’s reputations if that’s what it takes. Republicans keep thinking it’s 1987 and the Bork debacle was the worst of it; in reality, we’re 30 years on, and the Bork debacle was just the beginning of it.

I learned this in terrorism cases. Radical left-wing attorneys, who style themselves “political lawyers,” try to turn the proceedings into a zoo, chaos being the weapon of those for whom the rules assure defeat. Either the judge takes control of the courtroom with a firm hand, enforces the rules, and penalizes the antics, or there are interminable delays, baseless smears, and general bedlam.

The Kavanaugh confirmation hearing is bedlam. To reiterate what I argued on Friday, there is no reason to have another hearing. The Democrats waived any entitlement to a hearing by their calculated failure to raise Dr. Ford’s claims after learning of them nearly three months ago, and during the days-long hearing already held. To drop a bomb at the eleventh hour as they did was not an assertion of rights; it was an obstructionist ploy to delay a vote they were about to lose.

Even if they had not waived any right to a hearing, there would be no point in conducting one. Dr. Ford’s 36-year-old claim is too stale to resolve. We have statutes of limitations because time plays tricks on our capacity to recall and relate remote events. An accused does not have a fair opportunity to defend himself as witnesses disappear, or their memories fade and falter, and evidence is lost. As the Supreme Court observed in Doggett v. United States (1992), a case involving an eight-year delay between allegation and adjudication (i.e., a bare fraction of the 36-year delay we’re talking about here), speedy trial rights are of constitutional pedigree and “unreasonable delay” prejudices the accused’s fundamental right to mount a defense, “skew[ing] the fairness of the entire system.”

Ford says a sexual assault happened, though she is sketchy on the details. Kavanaugh says he had nothing to do with it, and he is adamant in his denial. A hearing would not establish either that the incident is a fabrication or that Kavanaugh is culpable. At the end of a hearing, we’d be exactly where we are now. That’s when you don’t have a hearing: when it is obvious that having one would be pointless.

If Senator Grassley wants to forgive the Democrats’ gamesmanship and display sensitivity for Dr. Ford, fine: Take submissions in writing from relevant witnesses — particularly Ford and Kavanaugh. Let the committee weigh them with everything else in the record. But there is no need to produce a television spectacle.

Alas, the committee is reportedly negotiating the terms of Ford’s appearance, terms that would turn the proceedings into an even farcier farce. Ford’s side demands that Kavanaugh, the accused, should be made to testify first — before there is a sworn allegation against him. Then he is to be sequestered from the hearing room (maybe held in the Tower!) while Ford takes center stage; no committee lawyers allowed, no Republican retention of a savvy female litigator to cross-examine Ford — just the Senate’s old white guys, the better to generate made-for-TV footage for the Democrats’ upcoming “War on Women 2” election ads.

It couldn’t more patently be a political stunt.

Maybe Chairman Grassley and his colleagues will figure that out on Thursday. Or is it the next Thursday? Or the day after the midterms? . . .

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