Brett Kavanaugh's bitter nomination has been years in the making

With less than 24 hours left before the clock runs out on Christine Blasey Ford's chance to signal she'll te...

Posted: Sep 21, 2018 12:33 AM
Updated: Sep 21, 2018 12:33 AM

With less than 24 hours left before the clock runs out on Christine Blasey Ford's chance to signal she'll testify before the Senate Judiciary Committee about sexual assault allegations she has made against Supreme Court nominee Brett Kavanaugh, partisans -- in and out of Congress -- have lined up behind their party flags. Republicans say they have given Ford ample chance to tell her story publicly despite the last-minute nature of how the accusations surfaced.

Democrats push back that Republicans are trying to pressure Ford into an artificial timeline for purely political purposes, thereby robbing her of the necessary time to process what has happened to her.

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If this all seems like the absolute worst of politics, that's because it is. But it didn't come from nothing. The tensions, distrust and recriminations between Republicans and Democrats in the Senate when it comes to Kavanaugh didn't begin with President Donald Trump's latest pick for the Supreme Court. Or even with Brett Kavanaugh at all. Or Donald Trump. The story of the animosity that has brought us to today began more than five years ago when Democrats controlled the Senate and the idea of a "President Donald Trump" was a punchline.

To understand where we are (and where we're going), you have to understand where all this started -- or at least where this curve in the road began. And to do that, you need to go back to November 21, 2013.

It was on that Thursday in Washington when the Senate -- by a 52-to-48 margin -- erased the long-standing rule that 60 votes were needed to end a filibuster on judicial nominees in the chamber. Prior to that vote, any piece of legislation -- including the nomination of a federal judge -- could be blocked in perpetuity as long as the majority party couldn't secure 60 votes to end debate on the issue and bring it to the Senate floor for a simple majority vote. Without 60 votes in favor of ending the endless debate of the Senate, you could just talk and talk and talk. (In truth, speaking filibusters are more and more rare; in the last few decades, simply the lack of 60 votes virtually ensured that no legislation would move -- whether or not an opponent was standing on the floor and speaking for hours on end.)

The so-called "nuclear option" -- so named because it was seen as annihilating one of the basic tenets of how the Senate had worked until that point -- was triggered by then-Senate Majority Leader Harry Reid, a Democrat. Reid, who retired in 2016, cast the move as the only tool left to Democrats to counter Republicans' blockading dozens of President Barack Obama's nominees for the federal bench. Reid's triggering of the nuclear option was specifically aimed at judges below the Supreme Court level. Supreme Court nominees would still need 60 votes to end a filibuster and win approval by a simple majority.

"A deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of an election is not normal," Obama said at the time. "And for the sake of future generations, it cannot become normal." Mitch McConnell, who was the Senate Minority Leader at that point, warned of dire future consequences from the change. "You'll regret this and you may regret it a lot sooner than you think," the Kentucky Republican promised.

McConnell was right. In the 2014 election, Republicans won control of the Senate -- and McConnell became the Senate Majority Leader. But the real blowup was still a ways off. And it came in February 2016, when Supreme Court Justice Antonin Scalia died suddenly at the age of 79.

Scalia's death created an opening on the Supreme Court, one that Obama, as President, was tasked with filling. Within a month of Scalia's death, Obama formally nominated Merrick Garland, seen by many as a consensus choice, to fill the seat. From the start, Senate Republicans refused to acknowledge Garland's nomination -- insisting that with less than a year left before the 2016 presidential election, Obama did not have the right to make a court pick that would have implications on the nation's jurisprudence for decades beyond his term.

"The American people may well elect a president who decides to nominate Judge Garland for Senate consideration," McConnell shortly after the Garland appointment was announced. "The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy."

Democrats went bananas, arguing that this sort of stalling tactic was well outside the norm of how nominations to the court had been handled in the past. McConnell held firm; he didn't even meet with Garland in person, much less schedule confirmation hearings for him.

Then Trump won. And everything changed.

Almost a year to the date of Scalia's death, Trump announced that Neil Gorsuch would be his nominee to fill the late conservative jurist's seat on the court. "Millions of voters said this was the single most important issue for them when they voted for me for president," Trump said in explaining his choice of Gorsuch. "I am a man of my word."

Democrats balked, noting that Republicans has blocked Garland for months and months solely in hopes that Trump won and picked someone like Gorsuch. They insisted not a single one of them would vote to end debate on Gorsuch, leaving Republicans well short of the 60 votes needed to break a filibuster. But McConnell had an ace up his sleeve. Citing Reid's decision to invoke the nuclear option on judges four years earlier, McConnell moved to simply extend the idea to Supreme Court nominees. And on the morning of Friday, April 7, 2017, it happened -- the GOP majority changed the number of votes needed to break a Supreme Court nominee filibuster from 60 to 50. Then they broke the Democratic filibuster. Within hours, Gorsuch had been confirmed to replace Scalia.

And that brings us to earlier this year -- June 27, to be exact. That's the day that Justice Anthony Kennedy, widely regarded as the swing vote on the court, announced his plans to retire at the end of the current term. Trump nominated Kavanaugh to fill the opening and McConnell insisted he would get the nominee confirmed before the 2018 midterm elections. Democrats -- and this is a common theme -- cried foul, pointing out that the timeline McConnell set out for confirmation was tighter than the one he would have had to put in place to confirm Garland. Knowing that if he could keep his own side unified then what Democrats said mattered not at all, McConnell said the situations were different -- a midterm election vs. a presidential election -- and worked like hell to keep the likes of Republican Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) on board with Kavanaugh.

The allegations from Ford, which emerged in just the last six days, upended McConnell's plan. At least for a moment. Knowing that confirming a Supreme Court justice in a lame-duck, post-election session of Congress in December wouldn't be the best look and that if Democrats took over the Senate this fall they could hold the court seat open well beyond what Republicans did with Garland (think after the 2020 presidential election), McConnell and Grassley set a deadline: If Ford doesn't testify in front of the Judiciary Committee on Monday, then the confirmation proceedings will simply proceed.

Again, Democrats raged but had little ability to disrupt the dictate. Unless Ford steps forward sometime between now and 10 a.m. tomorrow and says she will appear in the Senate on Monday, there will be a vote to approve Kavanaugh out of Judiciary next week and a full floor vote to follow hard on the heels of that. And judging from statements over the past 24 hours from the likes of Collins and other occasionally-off-the-reservation Republicans like Jeff Flake (Ariz.) and Bob Corker (Tenn.), it appears as though if Ford does not agree to testify Monday that Kavanaugh will be confirmed.

That will be the latest -- and perhaps most acrimonious chapter -- in the long-running narrative around the federal bench and the Senate. And it will take a well that is already badly poisoned and pour gallons of cyanide into it.

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