Commentary

Republicans Treated Merrick Garland Way Better Than Democrats Treated Brett Kavanaugh

Even though Brett Kavanaugh was ultimately confirmed to the Supreme Court, while Merrick Garland’s nomination expired alongside the Obama presidency, there’s no question that the chief judge of the D.C. Circuit was treated better than the newest justice has been.

Set aside the debate over whether it was proper for Senate Republicans to hold open the seat vacated by Justice Antonin Scalia’s passing, whether norms were broken and institutions sacrificed on the altar of power politics. Nobody’s mind will change on that.

Democrats’ anger at Senate Majority Leader Mitch McConnell’s tactics is understandable, even if they would’ve done the same thing in his place. But this was a black swan event. The last time the Senate confirmed a Supreme Court nominee of a president of the opposite party to a vacancy arising in a presidential election year was 1888.

Focus instead on how the Senate treated each nominee personally. McConnell announced his “no hearings, no votes” stance within hours of Scalia’s death, without waiting for President Obama to pick a nominee (which didn’t happen for another month). He argued that, since the country was embroiled in a heated election campaign and the next justice could shift the balance of the Supreme Court, the American people should decide who gets to fill that seat—when they chose a new president less than nine months later.

Brett Kavanaugh takes his seat amid debates about the Supreme Court’s ‘legitimacy,’ with substantial portions of the population thinking he’s a rapist.

Senators made clear, both before and after Garland was formally nominated, that this was about the direction of the Supreme Court, not about any person. There were no charges that Garland was a left-wing firebrand or otherwise unqualified. Indeed, such accusations would’ve been absurd. Nor were there fishing expeditions into Garland’s past, with media leaks to portray any juicy morsel in the most negative light possible.

Contrast that with the trial by ordeal that Kavanaugh endured. While there was gnashing of progressive teeth when Justice Anthony Kennedy announced his retirement, the opposition machine didn’t shift into high gear until President Trump selected his successor.

At that point, Senate Minority Leader Chuck Schumer vowed to oppose Kavanaugh “with everything I have.” Sen. Cory Booker, a member of the Judiciary Committee, said those who supported Kavanaugh are “complicit in evil.” Sen. Richard Blumenthal, who also sits on that committee, called Kavanaugh “your worst nightmare.” Former Virginia governor and Democratic National Committee Chairman Terry McAuliffe said Kavanaugh would “threaten the lives of millions for decades.”

I could go on, because these aren’t isolated examples. Senators accused Kavanaugh not just with the “usual” attacks on Republican judges as against women, minorities, workers, etc. He was also allegedly picked to enable Trump to avoid the Robert Mueller investigation and complicit in torture and other Bush-administration excesses. Then, of course, Kavanaugh and his Trump/Bush-stooge buddies supposedly stonewalled senators’ demands for documents, even though more were produced than for the last half-dozen Supreme Court nominees combined.

That’s even before taking into account the last three weeks, most notably (1) Democrats sitting on Christine Blasey Ford’s allegations until the last possible moment (instead of allowing the FBI to conduct a confidential investigation); (2) raising every aspect of juvenile behavior into an impeachable offense; and (3) complaining about “temperament” after humoring spurious allegations of gang rape and the like.

It’s no wonder that, when I ran a Twitter poll before the final confirmation vote, 60 percent of the roughly 900 respondents said they’d rather be Garland than Kavanaugh. That’s not in any way scientific, and my Twitter followers are by no means representative of the nation, but the fact that a significant number of people would rather be a failed nominee than one who at that point was more likely than not to be confirmed is telling.

Would it have been more humane or charitable to have given Garland a kabuki hearing followed by a no vote? Or, since hearings aren’t constitutionally required, maybe just rejection on the Senate floor without any debate, formally providing the “advice” to President Obama that there would be no “consent”?

I certainly feel sorry for Garland, but it’s not like he was banished onto an ice floe with his reputation in tatters. He just returned to his job as the chief judge of the second-highest court in the land, with even more respect from the legal profession and sympathy from all, including his political enemies.

Kavanaugh, meanwhile, takes his seat amid swirling debates about the Supreme Court’s “legitimacy,” with substantial portions of the population thinking he’s a rapist, or at least that he would’ve been if he weren’t too drunk to pull it off. Justice Clarence Thomas went through something similar 27 years ago, but Kavanaugh’s experience in our new-media age must have been even more searing.

The sad thing is that such a campaign of personal destruction would’ve been run on any Trump nominee. Those opposition press releases with “XX” in place of the nominee’s name attest to that. The details would’ve been different because each potential justice’s offenses against the latest hierarchy of intersectional pieties are different, but the result is the same: guerrilla war by any means possible.

If the Democrats had simply itemized their jurisprudential concerns with Kavanaugh—abortion, the Second Amendment, Chevron deference, and anything else—and declared uniform opposition on that basis, that would’ve been fine. (I thus disagree with Sens. Lindsey Graham and Susan Collins on whether senators should approve all nominees who have the requisite intellect and legal training, regardless of judicial methodology or constitutional theory.)

But that’s not what happened. The fiasco that we just lived through wasn’t about blocking a nominee, but about tearing him down. It’s definitely worse than what happened to Garland.

Ilya Shapiro is a senior contributor to The Federalist. He is a senior fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.