Three days into the Senate Judiciary hearings, it's tough to tell who's interviewing for a job -- Brett Kavanaugh or the president's 2020 challengers? Today, Senator Cory Booker (D-N.J.) did his best to put the spotlight back on himself, threatening -- dramatically -- to release some of the confidential documents he had on the president's pick. Calling it his "I am Spartacus moment," Booker engaged in his version of "civil disobedience" and posted the pages. But to most people, his self-serving stunt only sums up what Americans are starting to understand: these senators don't live by the rules -- and they certainly wouldn't govern by them.
His grandstanding may have made the far-Left swoon, but to Republicans, who seem to be the only ones taking this confirmation seriously, it's just another example of how quickly Democrats will sell out the process to advance their own careers. What Booker did isn't heroism, it was subversion. And unfortunately for America, that's a distinction the president's opponents seem increasingly unwilling to make. Insisting he was breaking the rules for the greater good, Booker said he was "willing to accept the consequences," which include expulsion from the U.S. Senate. Instead, top Republicans shamed him for his theatrics, insisting that "running for president is not an excuse for violating the rules of the Senate." Chairman Chuck Grassley (R-Iowa), who has the least enviable job of anyone this week, fired back, "You want to give up your emails right now? Make them public? I don't think you do!"
Across social media, people watching the hearing were stunned that Booker was so willing to release confidential documents (which drew some interesting comparisons to another recent presidential candidate). Even the New York Times took a jab at the senator's exaggerated sense of self-importance, pointing out that most of those pages had already been released by their own reporters. And what was this "smoking gun" that Senator Booker was willing to risk his job over? Emails from 2003, for starters, suggesting that Kavanaugh doesn't consider the abortion issue as resolved as pro-lifers worried he did.
While he was a White House lawyer in the George W. Bush administration, Kavanaugh advised against referring to the Supreme Court's decision in Roe v. Wade as the "settled law of the land" in a draft op-ed. "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level," he wrote, "since Court can always overrule its precedent, and three current Justices on the Court would do so." While Democrats fired off questions about what that could mean, and whether he would overturn abortion law, Kavanaugh said simply, "I thought that was not quite an accurate description of all legal scholars because it referred to 'all.'"
A day earlier, Kavanaugh dazzled conservatives with his defense of religious liberty, telling Senator Ted Cruz (R-Texas) that he rejected the religious test liberals tried to apply to nominees like Amy Coney Barrett. "...[T]he framers understood the importance of protecting conscience, it's akin to the free speech protection in many ways ... If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square, and to participate in the public programs, as others do."
"In other countries around the world," he went on, "you're not free to take your religion into the public square." He cited crosses being knocked off of churches in mainland China, and that "you can only practice in your own home, you can't practice, you can't bring your religious belief into the public square. And being able to participate in the public square is a part of the American tradition. I think as a religious person, religious speech, religious ideas, religious thoughts, that's important."
For now, the 21 senators on the committee will take their turn asking more questions. But the biggest, Senator Ben Sasse (R-Nebr.) pointed out, may be why the courts have become so politicized to begin with. In an op-ed that should be required reading for Congress, he explains the identity crisis in our current branches of government. "In the U.S. system, the legislative branch is supposed to be the center of politics. Why isn't it? For the past century, more legislative authority has been delegated... Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch."
"When we don't do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that's why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system... We need a Congress that writes laws, then stands before the people and faces the consequences. We need an executive branch that has a humble view of its job as enforcing the law, not trying to write laws in Congress's absence. And we need a judiciary that applies written laws to facts in cases that are actually before it... This is the elegant, fair process the Founders created."
And, as Brett Kavanaugh's hearing proves, it's a process America desperately needs to return to. Otherwise, the country (and liberals in particular) will keep looking to the courts to decide issues that were never theirs to begin with.
For more on this week's confirmation circus, don't miss Peter Sprigg's new column, "The Problem with Judicial Nominations? The Left Doesn't Actually Want to Follow the Constitution."
