Unease of Kavanaugh hearing runs much deeper than the nominee

Unease of Kavanaugh hearing runs much deeper than the nominee
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The tension in the Senate Judiciary Committee’s hearing room was palpable. Was something  amiss in the Kavanaugh hearing? Answer: Yes, and it was not just the curiosity of the normally level-headed Sen. Cory BookerCory Anthony BookerTrump, GOP regain edge in Kavanaugh battle Booker: It would be ‘irresponsible’ not to consider running for president Senate Dems sue Archives to try to force release of Kavanaugh documents MORE (D-N.J.) stating that he would be willing to resign in order to disclose documents that his opposing colleagues said were already disclosed.

Actually, given the past week’s fuller explanation of the leadership crisis in the White House, it is remarkable that the Supreme Court nomination hearings for Judge Brett Kavanaugh went off as traditionally as they did.

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Judge Kavanaugh lacks the matinee-idol face of Chief Justice John Roberts, the terse cerebral gymnastics of Justice Sam Alito, the up-from-the-bootstraps intrinsic of Justice Sonia Sotomayor, or the almost cocky self-confidence of Justice Neil Gorsuch, but he nevertheless is a tonic of distraction for what nationally ails us — which is plenty.

While the sniping among committee members was sharper than normal, and the clans of noisy people seemed capable of sneaking into the hearing room with placards, colored pencils and loud voices, there was something reassuring about the platitudinous statements about precedent or watching Sen. Kamala HarrisKamala Devi HarrisTrump, GOP regain edge in Kavanaugh battle Booker: It would be ‘irresponsible’ not to consider running for president Senate Democrats: Kavanaugh’s classmate must testify MORE (D-Calif.) play trial lawyer. If ever given a choice between waterboarding and being questioned by Sen. Harris, take waterboarding.

Yes, there was the usual grumbling about not learning enough about the nominee’s constitutional views. Truth is, Judge Kavanaugh has more completely discussed his judicial method than any of the preceding six nominees to the court.

Many people don’t know, or have forgotten, that it wasn’t until the days of President Franklin Delano Roosevelt that Senate hearings became part of the advice-and-consent process. Even then, it was thought rather uncouth for nominees to show up at their own hearings. When they did drop in, as did FDR’s Felix Frankfurter, little more was said than, “Please consult the record if you have any questions.” That’s more or less what we do today, except that now we require that the nominee sit at a table and repeatedly refuse to say how they would rule in cases that have yet to be briefed or argued.

In fact, we know more about Judge Kavanaugh’s thinking than the now-notorious RBG — Justice Ruth Bader Ginsburg, that is — thought proper to reveal before being confirmed unanimously in 1993.

And yet, an air of anxiety still pervaded the proceeding. It was not a lack of judicial experience on the part of Judge Kavanaugh, or the nominee’s inability to articulate the role of a judge as an independent neutral, that failed to calm the anxiety that hung over the proceedings.

What was different about the current hearing is not traceable in any meaningful way to the nominee. What was so incongruous, what was so unsettling, was not what the judge believes is or is not settled law; he has told us that repeatedly. What he cannot tell us is whether the president who nominated him respects the difference between a rule of law and the rule of men.

Because we now fear the worst, we also stand in fear of the lawful means the Constitution provides to address profound presidential failure. The 25th Amendment should not just be whispered in the halls of the White House or spoken of in anonymous essays; it must be openly addressed — for until then, we will have reason to fear a president who has made us fear each other.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.