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After hitting 'rock bottom' over Kavanaugh, can Senate find a way forward?

Why We Wrote This

Both sides agree the Kavanaugh fight may have inflicted lasting damage. Still, few are eager for a repeat – and the best time to consider improvements to the judicial nomination process is when there isn’t a vacancy at stake. 

J. Scott Applewhite/AP
Sen. Chris Coons, (D) of Delaware, a member of the Senate Judiciary Committee, answers questions about the confirmation of Supreme Court nominee Brett Kavanaugh on Capitol Hill, Sept. 20, 2018. Senator Coons has said he is now focusing on how to strengthen the legitimacy of the Court and heal the Senate, but it is unclear if his colleagues will be willing participants.

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After the most vitriolic Supreme Court nomination fight in memory – in which Justice Brett Kavanaugh was confirmed with merely 50 votes, under a cloud that has not dispersed – lawmakers on both sides agreed the process had hit “rock bottom.” And while some have ideas about how to avoid a repeat of this “horrible process,” as Alaska’s Sen. Lisa Murkowski (R) put it, the overwhelming view is that even more dirt will fly the next time around. “It is grim. There’s real, real anger in the Senate now,” says Gregg Nunziata, former chief nominations counsel on the Senate Judiciary Committee. Still, he adds, “we could start a conversation in the public and in the Senate on what a fair process looks like.” Mr. Nunziata points to the work of the bipartisan “Gang of 14” senators, who in 2005 negotiated a ceasefire in the filibustering of judicial nominees proposed by President George W. Bush. Some are even raising the possibility of term limits for justices, rather than lifetime appointments, so that each nomination does not seem so earth-shattering. “It’s possible. People are getting pretty desperate,” says Carl Tobias, a professor at the University of Richmond School of Law in Virginia. 

At the height of the bitter battle over Brett Kavanaugh’s Supreme Court nomination, Democratic Sen. Chris Coons sat down with his wife for a soul-searching conversation. “Is this really worth our time?” they wondered, as they discussed whether the senator should run again.

The Delawarean is not up for reelection until 2020 – but the job has grown more and more frustrating in a polarized Senate that seems unable to address big issues. And as a member of the Judiciary Committee, Senator Coons had a ringside seat to a Supreme Court confirmation circus that was more vitriolic than any he had ever seen.

The next Senate also won’t include some of Coons’s closest working partners on the GOP side – John McCain of Arizona, who died in August; Bob Corker of Tennessee, who is retiring; and Jeff Flake of Arizona, who is also retiring, and who agreed with Coons on the need for an FBI supplemental background check into allegations of sexual assault against Mr. Kavanaugh in his younger years.

Still, Coons, a graduate of Yale Law and Divinity Schools, concluded he could not “abandon” his post, telling an audience at the Atlantic Festival in Washington last week, “If the Senate doesn’t work, our Constitution, our republic, our nation doesn’t work.” On NBC’s “Meet the Press,” he said he’s focusing on how to strengthen the legitimacy of the Court and heal the Senate after it approved a justice with merely 50 votes, under a cloud that has not dispersed. Coons voted against Kavanaugh in what was an almost entirely party-line vote. 

Yet while Coons may be focused on healing, it is unclear if many of his colleagues on either side will be willing participants – or if the Senate can truly recover from a judicial nomination process that many agree hit “rock bottom.” There will be another Supreme Court nominee at some point, perhaps sooner rather than later. And while lawmakers and experts may have ideas about how to avoid a repeat of this “horrible process,” as Alaska’s Sen. Lisa Murkowski put it, the overwhelming view is that there may be even further to dig, and more dirt will fly. 

Indeed, majority leader Mitch McConnell (R) of Kentucky disputed the premise that the process needed fixing – and put all the blame for the ugliness of the Kavanaugh fight squarely on the Democrats. “I think we know who the culprits are here when it comes to the quality of the discourse,” he told reporters Wednesday. 

No one thought things could get worse after Democrats blocked Judge Robert Bork from the Supreme Court on ideological grounds in 1987. They did. No one thought it could get any lower after Clarence Thomas was narrowly confirmed in the wake of sexual harassment claims from his former subordinate, Anita Hill, in 1991. It did. The Kavanaugh confirmation combined both of those issues into a political civil war without the artillery.

“It is rock bottom and it will continue … until some kind of reforms are implemented,” writes historian Julian Zelizer of Princeton University in an email. Next time around, he says, Republicans will be doubly determined to be aggressive with Democrats as payback for their treatment of Kavanaugh. Democrats, for their part, believe Senator McConnell has systematically destroyed the confirmation process, most notably by refusing to give President Barack Obama’s nominee, Merrick Garland, a vote or a hearing.

“With heated feelings like this shaping Washington, all appointees should expect rough waters ahead,” Mr. Zelizer concludes.

In the near future, these rough waters could include: an investigation of Kavanaugh, and possible impeachment proceedings against him if Democrats take the House; a Republican investigation into the leak of Christine Blasey Ford’s letter to Sen. Dianne Feinstein (D) of California claiming that the judge sexually assaulted her when they were in high school; a sustained vacancy on the Supreme Court if the presidency and the Senate are controlled by different parties; a refusal by the White House to share FBI background checks on a nominee with the Senate if members can’t be trusted to keep that information confidential; a poisonous spillover into federal and circuit court nominations.

“It is grim. There’s real, real anger in the Senate now, and between the senators. It’s not just politics. It’s not just playing for the cameras,” says Gregg Nunziata, former chief nominations counsel on the Senate Judiciary Committee and former policy adviser to Sen. Marco Rubio (R) of Florida. “There’ve been many times that I’ve said it can’t get any worse – and I keep saying it.”

Still, Mr. Nunziata says the worst of the Senate warfare may be contained to the Judiciary Committee, the most polarized committee in the Senate. It handles the most divisive issues – like abortion and prayer in schools – and tends to be made up of more ideological senators. “People close to the center rarely choose to serve on the committee,” he says.

Indeed, Chairman Chuck Grassley (R) of Iowa has had trouble finding people to serve on the panel, though he says it’s because of the workload.

In an interview last week, Coons pointed out that the Kavanaugh confirmation fight has actually “masked” meaningful, bipartisan work that the Senate has recently accomplished – unusual speed on passing spending bills, an opioids bill, a long-term reauthorization of the Federal Aviation Administration, and a bipartisan bill that Coons coauthored to finance international development.

The stakes in the Kavanaugh hearing were particularly high for both sides, because his confirmation meant replacing a swing justice with a reliable conservative that would tip the judicial balance on the court. At the same time, the court has become the arbiter of intensely personal issues – access to contraceptives and abortion, who can marry, surveillance of personal communications – and issues that address central questions of liberty, such as the right to bear arms.

“I think the reasons we fight so much about the Supreme Court are probably still there,” says Nunziata. At the same time, “we could start a conversation in the public and in the Senate on what a fair process looks like.”

The best time to start such a discussion is when there is not a vacancy at stake, he says. He points to the work of the bipartisan “Gang of 14” senators, who in 2005 negotiated a temporary ceasefire in the filibustering of federal judicial nominees proposed by President George W. Bush. Many members were pointedly not on the Judiciary Committee, and were considered moderates.

Only two of those senators remain in today’s polarized Senate – Sen. Susan Collins (R) of Maine, who cast the deciding vote for Kavanaugh after a long and detailed floor speech explaining her reasoning, and Sen. Lindsey Graham (R) of South Carolina, who gave a fiery defense of Kavanaugh at the final hearing and excoriated Democrats for “the most unethical sham” he’s seen in his years in politics. Senator Graham could become the Judiciary chairman next year, and if that comes about, “I’m going to remember this,” he told the panel.

Some also point to a longer-term possibility to defuse the nomination process – term limits for justices, rather than lifetime appointments, so that each nomination does not seem so earth-shattering. 

“It’s possible. People are getting pretty desperate,” says Carl Tobias, a professor at the University of Richmond School of Law in Virginia. Whether it would require a constitutional amendment is not clear, he says.

Coons has a far easier idea, and a first step.

“The way [to] calm down is by our getting back to work, finding things we can do together, and receding from some of the sharpness of what’s been said,” he told the Monitor.  

He gave an example of that effort in his talk at the Atlantic Festival. When he came back from Senator McCain’s funeral in Phoenix, he reached out to several newer Republican senators with whom he has a shared interest, background, or committee.

“I said, bluntly, ‘I want to come get to know you. I want to come to your state. I want to come to your home. I welcome you to mine. I’d like to go to worship together. I’d like to give a speech together. I’d like to find a way to legislate together.’ Because if there aren’t people I can work with, there is really no point in my being here.”

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