Al Franken

Opinion contributor

The nomination and confirmation of a Supreme Court justice is supposed to be a grave and solemn exercise of carefully apportioned constitutional powers. These Justices, granted lifetime terms in order to insulate them from political considerations, must be exemplars of sound judgment, even temperament and, above all else, impartiality.

I know this because I keep hearing Republicans on the Senate Judiciary Committee say this stuff. But having served alongside them for three Supreme Court confirmations — and now watching Brett Kavanaugh’s confirmation process unfold — I have to say, I don’t think they really mean it.

Recall that, in his opening remarks at the White House ceremony announcing his nomination, Judge Kavanaugh praised President Donald Trump’s diligence, declaring that “no president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

Kavanaugh's lie should disqualify him

This was extremely untrue. President Barack Obama, for example, had taken a month or close to it to pick both Sonia Sotomayor and Elena Kagan. Trump had taken just 12 days to make his pick. And, of course, he made that pick from a list of 25 names presented to him by the right-wing Federalist Society.

If judgment matters, and if we want judges who make their judgments based on a full and fair understanding of the facts, a big, fat, easily debunked lie like Kavanaugh’s should have been instantly disqualifying. Instead, it became just the first example of how Kavanaugh’s selection to the Supreme Court represents a perfect illustration of what the conservative movement has been doing to the judicial system for decades.

Kavanaugh is the very model of a young, archconservative judge who has been groomed for moments like this one precisely because conservative activists know that he will issue expansive, activist rulings to further their agenda. Advancing the goals of the Republican Party and the conservative movement — starting by lavishing obviously nonsensical praise on a president whose own staff, per this week’s anonymous New York Times op-ed, considers him to be an unstable idiot who operates out of whim — that’s what Kavanaugh is there to do.

And no matter how much civics-class pabulum we get from Republicans on the Judiciary Committee this week, make no mistake: They’re in on it.

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Just look at the way Chairman Chuck Grassley has treated documents related to Kavanaugh’s time as a senior official in the George W. Bush administration. He allowed Bill Burck — a former assistant and close friend of Kavanaugh’s and also the attorney for several prominent Trump administration figures — to sort through Kavanaugh’s papers in order to decide which should be released publicly. I can only imagine what that was like: “Nothing, nothing, nothing, smoking gun. Nothing, nothing, nothing, nothing, nothing, smoking gun, nothing ...”

In the end, thousands of documents were declared “confidential” and withheld, although they were likely on extremely relevant topics such as torture during the war on terror. And in the middle of the night before the first day of hearings, the committee received a dump of 42,000 pages (which, Grassley insisted roughly 42,000 times, his staff had somehow been able to review over the course of a few hours).

Why the secrecy? Why the rush? Because Republicans are intent on getting a fifth vote on the bench to protect Trump from special counsel Robert Mueller's investigation in time for the Supreme Court’s fall term. I had to laugh when, during the hearings, Kavanaugh called the question of whether a president can be subpoenaed a “hypothetical.” Really? Kavanaugh was part of independent counsel Ken Starr's investigation of President Bill Clinton in the 1990s — and, therefore, he is one of the few people on this earth who has actually participated in subpoenaing a president.

Judicial system a partisan battlefield under GOP

Brett Kavanaugh is a partisan who was nominated, and will likely be confirmed, in order to help achieve the Republican Party’s goals: destroying protections for people with pre-existing health conditions, eradicating what’s left of workers’ rights and, yes, overturning Roe v. Wade. Everyone knows it — including Sen. Susan Collins. When she emerged from her meeting with Kavanaugh, she said he told her he considers Roe v. Wade "settled law.” If she somehow believed it then — even after Trump had promised to make overturning Roe a litmus test for his nominees — she can’t possibly believe it now, given new emails showing that Kavanaugh himself has questioned whether Roe is indeed settled.

It’s maddening to watch her and the rest of the Republicans continue to pretend that they still have any respect for the high-minded ideals that are supposed to preserve the impartiality and independence of the Supreme Court. Kavanaugh is proof that there is no precedent they won’t trample, no revelation they won’t shrug off, no principle they won’t contradict, if it means getting the outcomes they want.

Democrats should stop letting them get away with it. The decision by Judiciary Committee Democrats to ignore Grassley’s hiding of documents and release them directly was a good start. But it’s time for all of us on the left to recognize that Republicans have already destroyed the independence of our judicial system and turned it into yet another partisan battlefield — and then figure out how we’re going to start fighting back.

Democrat Al Franken, a former senator from Minnesota, was a member of the Judiciary Committee from 2009 to 2018. Follow him on Twitter: @alfranken