Law & the Courts

Losing the Presumption of Innocence

Supreme Court nominee Judge Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee, September 6, 2018. (Alex Wroblewski/Reuters)

More than a century ago, the Supreme Court described a principle that it called “undoubted, axiomatic and elementary.” It is, the Court said, “unquestioned in the textbooks” and can be traced all the way back to ancient Greece and Rome. This fundamental principle — the presumption of innocence — may be one of the casualties of the campaign against Supreme Court nominee Brett Kavanaugh.

I wish that were an exaggeration, but in a CNN interview on September 23, Senator Mazie Hirono (D., Hawaii) refused to acknowledge that this principle — axiomatic, elementary, and ancient though it may be — applies to Kavanaugh at all.

A less radical position would say that, while Kavanaugh might have been presumed innocent like anyone else, the evidence is enough to erase that presumption. That might be less radical but, in Kavanaugh’s case at least, it won’t fly.

Two women accuse Kavanaugh of sexual misconduct sometime in the early 1980s, one while Kavanaugh was a high-school student, the other when he was a freshman at Yale. The judge has repeatedly, categorically, and unequivocally denied these accusations. More than that, though, he has done so to Senate Judiciary Committee investigators. If he were to lie to them, he would be committing a federal felony.

The first accuser, Dr. Christine Ford, says Kavanaugh sexually assaulted her at a party. A summary of “what we know” about these allegations at vox.com says: “Ford admits that there are key details about the incident that she does not remember,” including the “location of the house.” Each of the four people Ford has named as attending this party deny being there. Therapist notes three decades later describe an incident but do not name Kavanaugh.

The second accuser, Deborah Ramirez, says Kavanaugh exposed himself to her at a party. According to The New Yorker, she “acknowledged that there are significant gaps in her memories of the evening.” Both The New Yorker and the New York Times spoke to several dozen people, but could find no one to substantiate Ramirez’s accusation. According to The New Yorker, at least seven people she named deny they attended the party in question, including a woman who said that she and Ramirez had been “best friends.”

Beyond this lack of evidence for the accusations themselves, they are inconsistent with evidence about Kavanaugh from and since the time of these alleged incidents. Hundreds of people, including dozens of women (and even former girlfriends), who have known him for decades offer a completely consistent description of Kavanaugh as a decent, respectful, honorable person. No one says they saw him, at any time and under any circumstances, do anything like what Ford and Ramirez claim.

This brief rundown shows, I think, that the facts we know do not overcome the presumption of innocence. The only thing left for the Left is to say that Kavanaugh simply doesn’t get the presumption of innocence in the first place.

That is Hirono’s position. She is questioning the “unquestioned” presumption of innocence itself, at least in Kavanaugh’s case. But why single him out? Hirono is not clear on that, but referred to “how he approaches cases,” that “he’s very outcome-driven,” and is “against women’s reproductive choice.” This makes it sound like the presumption of innocence belongs only to those who agree with her on certain issues or who, as judges, would decide cases to her liking. Those with whom she disagrees are guilty until proven innocent (and good luck with that).

If the presumption of innocence depends on one’s personal views, then we have much deeper problems as a country and a society to deal with. What’s next, parceling out the freedom of speech based on its content or the right to keep and bear arms based on need? Oh that’s right, the Left is pushing for those as well.

In 1850, the Supreme Judicial Court of Massachusetts said: “All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty.”

Every person.

Law & the Courts

Opposing Kavanaugh by ‘Whatever Means Necessary’

Senate Minority Leader Chuck Schumer (Yuri Gripas/Reuters)

Americans hold politicians in low esteem. In a 2017 Gallup poll on the honesty and ethical standards of people in 21 different fields, 60 percent rated politicians “low” or “very low” in this regard — (vs. only 39 percent feeling that way about car salesmen, for example).

A poll at the 2014 midterm election found that only 4 percent of Americans believe that politicians keep their promises. Not a pretty picture.

Senate minority leader Chuck Schumer (D., N.Y.) is out to show us that he’s one politician who can keep a promise. On July 9, within minutes of President Trump’s announcement of Judge Brett Kavanaugh as his Supreme Court nominee, Schumer vowed to “oppose Judge Kavanaugh’s nomination with everything I have.” When he said everything, he meant it.

I can’t prove it, but if I were a betting man, I would wager that Schumer’s statement was written ahead of time, leaving a blank for the nominee’s name. Other Senate liberals, such as Kamala Harris (D., Calif.) and Mazie Hirono (D., Hawaii) actually announced their opposition nearly two weeks earlier, without even knowing who the nominee would be.

Nothing that the confirmation process had to offer was relevant to these senators because they already had the one piece of information, the one word, that really mattered: Trump. They would oppose the nominee because he or she would be Trump’s nominee. Period.

It was more than strange that senators who long before had made up their minds against Kavanaugh would complain that they needed more time to review more information about him. Senator Richard Blumenthal (D., Conn.) said he had thoroughly reviewed Kavanaugh’s record when he announced his opposition in early July yet tried to postpone the hearing so he could . . . review Kavanaugh’s record.

In 2009, Schumer said that a judicial record is the “best way to evaluate a nominee” and even more important than the confirmation hearing. Senator Patrick Leahy (D., Vt.) agreed that “looking at what kind of judge a nominee has been means we do not have to speculate about what kind of a Justice” he will be. Neither one of them is interested in Kavanaugh’s judicial record today.

In fact, Democrats did not even try to debate the most important thing about a judicial nominee, namely, the kind of judge he or she will be. They made no attempt to explain why they oppose the kind of judge that Kavanaugh has been or the kind of justice he will be.

Schumer and Leahy have said that the American Bar Association’s rating is the “gold standard” for evaluating nominees. The ABA unanimously rated Kavanaugh well qualified which means, the ABA explains, that he meets “the very highest standards of integrity, professional competence and judicial temperament.” That no longer matters either.

No, the only thing that matters to liberals is preventing Trump’s nominee from joining the Supreme Court. To pursue that political goal, Senate Democrats picked up the script from the beginning of the previous Republican presidency. Within days of President George W. Bush taking office in 2001, Democratic Leader Tom Daschle (S.D.) vowed to use “whatever means necessary” to defeat his judicial nominees.

That’s what Democrats are doing today, by any means necessary. They automatically credit an accusation even though every person the accuser names denies any knowledge of it. Democrats demand a new hearing for an accuser who cannot identify the time or the place of an alleged incident. They refuse to share with the rest of the Judiciary Committee what they claim is evidence against Kavanaugh. And, when The New Yorker traffics in what it admits is an unsubstantiated rumor, the hit piece’s author says the accuser came forward because “Democrats came looking” for someone to say such things.

Partisan double standards, ignoring what really matters, smears, turning basic notions of fairness on their head — that is what it means to use “whatever means necessary.” Schumer is keeping his promise of opposing Kavanaugh with everything he has. It won’t be enough.

Law & the Courts

This Day in Liberal Judicial Activism—September 24

Judge Rosemary Barkett.

1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

Law & the Courts

Mea Maxima Culpa

I apologize deeply and sincerely to all those whom I have harmed by my appalling and inexcusable tweet thread last week—above all, the person whose name I wrongly made public, but lots of others as well, including Judge Kavanaugh, my Ethics and Public Policy Center colleagues, those institutions and individuals who have supported my work or my colleagues’ work, the editors of National Review (who have made it possible for me to reach a wide audience here at Bench Memos since 2005), and many others who had placed their trust in me.

I also apologize to victims of sexual assault and to Dr. Ford for these and other tweets that did not address with respectful consideration the difficult question of how to assess allegations of sexual assault. I do not believe that all such allegations must be accepted as true, and I believe further that the usual inquiries into motivation, cognition, memory and other matters that apply to other charges properly apply to these as well. But my tweets did not advance the discussion in a constructive way.

I don’t mean this to be exculpatory, but I do want to emphasize that my grave error resulted not from malice towards anyone but instead from my deep faith in the honesty and integrity of Judge Kavanaugh, whom I have known, worked with, and admired for many years, and from my resulting over-readiness to rush to his defense.

At the direction of my board, I will be taking a leave of absence of undetermined duration from EPPC. I intend to use the leave to reflect on how and why I made the mistakes I did and to chart a better course forward. I expect that my blogging will be much reduced in the meantime (and that my tweeting will be minimal or non-existent).

I am grateful for all the consoling notes I have received, including some from very unexpected quarters. I fully deserve much of the criticism that others have directed at me, and I will not undertake here to distinguish between the fair critiques and the unfair ones. To those who have taken delight in being vicious towards me, I will say only that my self-rebuke stings far more than anything they can say.

Law & the Courts

This Day in Liberal Judicial Activism—September 23

(Shutterstock)

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), a unanimous Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Law & the Courts

This Day in Liberal Judicial Activism—September 22

Barack Obama delivers the keynote address at the 2004 DNC.

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Anatomy of a Left-Wing Political Drive-By Hit Against a Supreme Court Nominee

First, we started with the notion that a Supreme Court nominee should be rejected based on an anonymous, uncorroborated allegation about events decades ago.

Then, we progress to the argument that a private citizen can demand that the Senate hold a hearing and set its terms and procedures.

Next, we hear about those terms, and they are in flagrant disregard of 800 years of the rule of law: The accuser gets to go second, so the accused can’t answer the actual charges against him. The accuser gets to pick her questioners. And the accuser gets to call witnesses, whom nobody gets to find out about beforehand.

This has never been about finding the truth. This has always been about smearing a dedicated and upstanding public servant for the basest of political motives, without giving him a chance to defend himself.

It’s time to stop the circus. #ConfirmKavanaugh

Law & the Courts

This Day in Liberal Judicial Activism—September 20

(Photo: Suzanne Tucker/Dreamstime)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Derailing an Investigation

The FBI background investigative process is designed to find the truth while respecting the privacy of everybody involved.  But Democrats undermined this process by burying Dr. Ford’s allegation for six weeks and then leaking it rather than following the well-established confidential committee procedures.

Now Democrats are trying to convince the FBI to reopen its closed investigation of the allegations as an excuse for delaying the committee’s inquiry.  Their request also ignores that the FBI’s role in such investigations is limited to questioning contemporaneous witnesses, and Dr. Ford already stated that she did not share her allegations with anyone until 2012, some three decades later.  The news media and political back and forth have now so polluted the environment that any hypothetical witnesses will have been tainted by the media circus.  If Democrats had been interested in a serious investigation, they would have cooperated with the investigators by sharing this information earlier, rather than treating the FBI itself as a political football.​

Senate Democrats aren’t pursuing the truth.  They are pursuing chaos, mob rule, and the goal of blocking Judge Kavanaugh’s confirmation, even if it means wrongfully destroying his reputation in the process.

Law & the Courts

This Day in Liberal Judicial Activism—September 19

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Health Care

Justice Kavanaugh and Pending Obamacare Litigation

Some opponents of Judge Kavanaugh’s confirmation have sought to make his confirmation a referendum on the Affordable Care Act (ACA), and in particular the law’s regulations requiring the provision of health-insurance coverage without regard for pre-existing conditions. The implicit premise is that, as a Supreme Court justice, Brett Kavanaugh would pose a threat to these portions of the law.

Texas v. Azar is the focal point of the ACA-based attack on Judge Kavanaugh. Yet as I explained in this VC post, there is little reason to think this case will reach the Supreme Court, and even less reason to think that a Justice Kavanaugh would be a vote to strike down the relevant ACA provisions. The underlying legal theory in Texas v. Azar is quite weak, there’s little reason to believe Justice Kavanaugh’s vote would be decisive (given the Chief Justice’s prior ACA opinions), and the remedy sought is one Judge Kavanaugh’s record suggests he would be unlikely to endorse.

Law & the Courts

Kavanaugh Hearing Highlights

Many commentators complain that little was learned about how Brett Kavanaugh is likely to approach legal questions as an Associate Justice of the Supreme Court. While it is certainly true that Judge Kavanaugh did not commit to resolving particular questions in a particular way, and consistently parried various lines of “gotcha” questioning, he also spoke at some length about his judicial philosophy.

Over at the Volokh Conspiracy, Randy Barnett has a series of posts highlighting interesting and probative comments and exchanges from the hearings. They provide a useful window on Judge Kavanaugh’s view of judging, the Constitution, and the law, and show that when Senators were actually interested in listening and learning, the hearings served a useful purpose.

Law & the Courts

This Day in Liberal Judicial Activism—September 17

Justice David Souter at Harvard Law School. (Wikimedia Commons)

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

Law & the Courts

This Day in Liberal Judicial Activism—September 15

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

The Farmer Who Helped Save the Law

Back in 2014, Bruce Braley, Joni Ernst’s Democratic challenger for Iowa’s open Senate seat, warned fellow trial lawyers about the state’s senior senator, Chuck Grassley, at a fundraiser: If the Republicans win control of the Senate, “you might have a farmer from Iowa who never went to law school, never practiced law, serving as the next chair of the Senate Judiciary.” Well before Ernst’s victory, which would help return the Senate to the GOP, Braley apologized to Grassley for the remark. So should anyone else who underestimated the first non-lawyer to chair the Senate Judiciary Committee.

Grassley has shown himself equal to a succession of challenges leading up to Brett Kavanaugh’s Supreme Court nomination hearings. He took the gavel during one of the most trying periods any Judiciary chairman has ever faced. For years, a liberal school of legal thought permeating academia and the Democratic Party promoted the notion that life-tenured judges should treat the Constitution as a malleable vessel for the imposition of their policy preferences. The election of President Trump proved momentous to the rule of law as a new administration committed itself to the nomination of constitutionalists to the federal bench.

Democrats reacted by surpassing their prior obstructionism of nominees during Republican administrations in order to make it as difficult as possible for President Trump’s picks to be confirmed. They forced the Senate to take far more cloture votes on nominations—no matter how noncontroversial they were—than any prior Congress at the start of a presidency and made the Senate spend an unprecedented number of hours of post-cloture debate time.

They abused the committee’s blue slip tradition, which was designed to encourage consultation with a circuit or district court nominee’s home state senators. Democratic senators instead regularly engaged in an indiscriminate refusal to turn their blue slips in, obviously hoping that that would effectively kill nominations from their home states.

Grassley would have none of this abuse, instead shepherding through nomination after nomination and refusing to permit Democrats to turn the blue slip, contrary to established practice, into a veto.

The results have been nothing short of remarkable: 68 judges confirmed to date, including 26 for circuit courts. The latter figure shatters the record—22 under the first President Bush—for court of appeals confirmations during a president’s first two years, with over four months still to go before President Trump hits the two-year mark.

And Grassley’s Judiciary Committee accomplished all this while facing the challenge of filling two Supreme Court vacancies. A year and a half after the hearings for Neil Gorsuch, the opposition set the bar for antics even lower during Kavanaugh’s hearings last week.

Because their objective was to obstruct the nomination, nothing Chairman Grassley did would have satisfied Democrats, despite his commitment to provide a fair forum for his colleagues. Democrats used that forum to make a spectacle of themselves. Perhaps they underestimated a senator who was sitting on his fifteenth Supreme Court hearing since joining the Judiciary Committee in 1981.

Grassley oversaw the production of over 480,000 pages of documents, surpassing the document productions for the prior five Supreme Court justices combined. Despite that, Democrats concocted a grievance maligning the same process that was observed during the Elena Kagan nomination and demanded millions of pages more from Kavanaugh’s time occupying the White House staff secretary’s office, documents that were irrelevant to predicting judicial performance.

Democrats made their demands through shrill displays from the inception of the hearing.  The minority senators interrupted the first day of hearings 63 times before lunch. Their noise was supplemented by the arrests of at least 227 demonstrators throughout the hearings. The remarkable thing is that even amid the cacophony, Sen. Cory Booker acknowledged Grassley’s widely recognized “sense of fairness and decency.” The Democrats’ big mistake: taking advantage of Grassley’s fairness and decency. The chairman’s willingness to let his Democratic colleagues speak had the effect of revealing their own lack of those traits.

Among the many misstatements and empty innuendo Democrats brought into the hearing, Booker’s Spartacus moment on the last day of Kavanaugh’s testimony deserves the blue ribbon. Although it is routine for some sensitive executive branch materials to be accessible only to the Senate as “committee confidential,” Democrats made that designation another grievance. But Grassley deftly accommodated specific requests to release any of those documents. Booker grandiloquently and dishonestly declared in his “I am Spartacus” moment that he had to violate committee rules to release (innocuous, as it turned out) Kavanaugh documents that (as it also turned out) had already been approved. Grassley’s staff had worked into the wee hours of the morning to accommodate Booker’s request.

Grassley’s commitment to transparency rendered the antics of Kavanaugh’s opponents transparent. Long before the hearings, Judiciary Committee Democrats had announced their opposition to the nominee before seeing any documents or asking any questions. The charade that they were seeking deliberation did not end with the kitchen-sink document requests or gotcha questions during the hearing. This week, the Democrats sent Kavanaugh 1,278 written questions, surpassing the total number of such questions submitted to all prior nominees in U.S. history combined.

At yesterday’s Senate Judiciary Committee business meeting, Grassley allowed votes on several additional unsuccessful dilatory motions by Democrats before making clear there would be a vote to report Kavanaugh to the full Senate during the next business meeting on September 20. He sent an unmistakable message: Any attempt at a filibuster during the meeting would not work. The Committee then proceeded to report out 11 lower court nominees to the full Senate, with more to follow next week, even with Kavanaugh on the agenda. That comports with Grassley’s work ethic.

The successful confirmation of constitutionalist judicial nominees foretells a restoration of the courts to the more modest role envisioned by the framers. That will be a victory for the rule of law and representative democracy. And it will have happened under the leadership of the Iowa farmer turned chairman of the Senate Judiciary Committee.

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