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In the end, none of it may matter. Even before the hearings began, it seemed likely that Republicans had the votes for confirmation, and Senate Majority Leader Mitch McConnell said Friday that he had no doubt “whatsoever” that Kavanaugh would get through. The Senate Judiciary Committee has produced hours and hours of testimony from a judge who will likely serve a lifetime appointment on the Supreme Court, attempting to compel a confession about which precedents he’ll keep or overturn right before he is set free to vote however he chooses on any future case. The whole contentious process demonstrated how partisan the Supreme Court nomination process has become, and how little power Congress—and American citizens—has to influence the judiciary.

Throughout the hearings, senators repeatedly came back to the question of precedents: which decisions were correctly or incorrectly decided, and how Kavanaugh would determine what should be overturned. Among the Democrats on the committee, the focus was on abortion, LGBT rights, and race. Feinstein was one of several senators who asked Kavanaugh repeatedly about his views on Roe, and the 1992 follow-up case, Planned Parenthood v. Casey. Harris brought up the Supreme Court’s 1889 decision on Chinese exclusion from the United States, asking Kavanaugh whether Congress or the president can ban entry into the country on the basis of race. “That was just in litigation,” Kavanaugh replied, refusing to give an answer “as a matter of independence.” Cory Booker asked Kavanaugh about his opinion on the right to same-sex marriage, established in the 2015 case Obergefell v. Hodges. He refused to share his personal views, answering instead, “The law of the land protects that right, as dictated by the Supreme Court.”

Kavanaugh followed what has now become a time-honored tradition of Court nominees wriggling their way out of giving a definitive answer about their views. His former boss at Harvard Law School, now-Supreme Court Justice Elena Kagan, referred to the practice in her confirmation hearings as not giving a “thumbs-up or thumbs-down” to any particular case. Kavanaugh consistently called back to the issue of judicial independence, crutching on the often-used sports cliché that he is just an “umpire,” calling cases in a purportedly neutral way.

Kavanaugh did have an interesting exchange with Republican Senator Ben Sasse about precedent, however. As Damon Root pointed out in the magazine Reason, Sasse got Kavanaugh to explain why he thought Brown v. Board of Education, which overturned the ruling that African Americans could be treated as “separate but equal” in Plessy v. Ferguson, was correctly decided. Kavanaugh praised the way the lawyer Thurgood Marshall, a future justice, litigated segregation cases in the lead-up to Brown, creating an incremental argument that eventually prevailed at the Supreme Court.

Politics | The Atlantic

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