Some people say we’re on the verge of another civil war. I think the Kavanaugh hearings have demonstrated that we’re already there. As nasty as politics gets, what we’ve been witnessing the past few weeks has left me more disenchanted than ever. Democrats are desperately trying to maintain their hold on the judicial branch. Since Donald Trump took office, almost every major policy decision he’s made has been met with court challenges, with radical activist judges taking it upon themselves to thwart Trump’s constitutional authority.
Democrats are also still licking their wounds over the inability to get Merrick Garland on the Supreme Court, and have used every dirty trick they can to thwart Brett Kavanaugh’s nomination, if not just delay it as long as possible.
Democrats have a history of changing rules to meet their immediate needs. When they were in the majority in the Senate, they nuked the filibuster, only to find out the hard way that that wasn’t such a great idea. But the Kavanaugh nomination has been an entirely different animal. They’re desperate and angry, and on a war footing, and it’s clear that they aren’t going to lose this battle with dignity.
I’ve compiled the top five ways Democrats have tried to justify delaying or thwarting Kavanaugh’s nomination.
5. Claiming vote should be postponed until after the midterms
As I said before, Democrats are still upset that Merrick Garland never got a vote, and tried to use the election year excuse to justify postponing Kavanaugh’s confirmation until after the midterms. Back in June, it was still considered unlikely that Democrats would take back Senate. But, that chance was enough for them to claim that in order for Republicans to be consistent on election year Supreme Court nominations, Kavanaugh’s confirmation vote should not take place until after the midterms and the new Senate was seated.
“Our Republican colleagues in the Senate should follow the rule they set in 2016 — not to consider a Supreme Court justice in an election year,” said Senate Minority Leader Chuck Schumer.
Except it wasn’t their rule. It was Joe Biden’s rule. Back in June 1992, then-Senator Joe Biden gave a speech to argue that should a Supreme Court vacancy occur, a successor shouldn’t be picked until after the presidential election that November. “[I]t is my view that if a Supreme Court justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed,” Biden said.
Biden wasn’t talking about a midterm election, he was talking about a presidential election, and whether a president who might lose his election should potentially get to make a nomination to the Supreme Court before his fate was certain. Republicans cited the Biden Rule in 2016 to block Garland, but it wasn’t applicable with Kavanaugh. It was just another attempt by Democrats to claim the existence of some rule that was politically convenient for them.
4. Claiming Trump can’t nominate because he’s under investigation
The next doozy was the claim that because Trump is under investigation (which he isn’t) he can’t nominate anyone to the Supreme Court. Future Democrat candidate for president Cory Booker called such a move a “potential conflict of interest” with the Mueller investigation. “I think it’s questionable we should be considering a nominee from a president who has a history of demanding these loyalty tests and we could be responsible for participating in something that could undermine that investigation,” Booker said. “I do not believe this committee should, or can in good conscience, consider a nominee put forward by this president until that investigation is concluded.”
George Washington University law professor Paul Berman even wrote in the New York Times, “people under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.”
But here’s the problem with that standard: President Bill Clinton was under criminal investigation in 1993 when Ruth Bader Ginsburg was nominated and confirmed. A year later he nominated Stephen Breyer to the Supreme Court even as he was “under the cloud” of an investigation by the Whitewater special counsel.
Liberals and their ever-changing rules.
3. Claiming that Trump is an unindicted co-conspirator and can’t nominate
The next excuse came after Trump former attorney Michael Cohen pleaded guilty to campaign finance violations over alleged hush money payments to porn star Stormy Daniels on Trump’s behalf and possibly with his knowledge.
Trump was quickly labeled an unindicted co-conspirator in a federal crime, prompting several Democrat to use this as an excuse to not meet with Kavanaugh at all; others simply called for another delay.
Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, and Sens. Jeanne Shaheen (D-N.H.) and Kamala Harris (D-Calif.) later joined Schumer’s call for a delay. “Americans don’t want a president who is an unindicted co-conspirator in a crime to have the power to appoint someone to the Supreme Court,” Harris said. “We should not proceed with Judge Kavanaugh’s confirmation hearings.”
Robert Reich, who was Labor secretary under Bill Clinton, also claimed, amongst other reasons, that Trump is “an unindicted co-conspirator in a government criminal case concerning campaign finance violations in the 2016 election.”
The problem with this “unindicted co-conspirator” angle was that what Trump was being accused of wasn’t a crime — that’s according to common sense, and former chairman of the FEC Bradley Smith.
…[R]egardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage.
Yes, those payments were unseemly, but unseemliness doesn’t make something illegal.
Liberal Democrat and lawyer Alan Dershowitz also said Trump committed no crime. Despite the Democrats’ posturing on this angle, there was no justification for calling for a delay or refusing to meet with Kavanaugh.
2. Claiming they need more time and more documents
If you listened to Democrat talking points, the Kavanaugh nomination has been rushed and Republicans have been trying to keep the lid on crucial documents that have to be reviewed before any vote can take place.
First, let’s address whether the nomination has been rushed. This claim is quickly debunked by comparing the number of days between the nomination of and the start of confirmation hearings for the last three Supreme Court nominees and Brett Kavanaugh:
- Sonia Sotomayor: 42 days
- Elena Kagan: 49 days
- Neil Gorsuch: 48 days
- Brett Kavanaugh: 58 days
As for the documents Democrats have requested on Kavanaugh, despite a plethora of public opinions and documents, Democrats kept making requests—or more accurately, demands—for more—including ones from his time working in the Bush administration that were under executive privilege. They’ve requested millions of pages of documents, and failed to find any smoking guns, and yet, everything they’ve been given, more than any other recent nominee, simply wasn’t enough. They just wanted to stall, stall, stall.
1. 11th-hour sexual assault allegation from 35 years ago
Finally, we come to the Hail Mary of the Democrats’ shameful tactics. Senator Dianne Feinstein waited until after the hearings concluded to come forward with anonymous claims from 35 years ago that while Brett Kavanaugh was 17 years old he sexually assaulted a 15-year-old girl. Eventually, the accuser was named as Christine Blasey Ford, and she came forward, but her story was full of holes, herself unable to provide details to verify her claim. Another boy named as having been present has since come forward denying the assault took place. Democrats salivated at the opportunity to request a new hearing, an investigation…
Despite major concerns regarding Ford’s credibility, including her lack of details, changing story, conflicting notes from her therapist, and that she’s an anti-Trump left-wing activist, who despite claims she never intended to come forward publicly, had scrubbed her social media, lawyered up, and taken a polygraph test. Ford went from being eager to testify to saying absolutely not, to tentatively agreeing under very specific (and frankly, unreasonable) conditions, including the bizarre request that Kavanaugh (the accused) testify before her. The whole thing stinks of a political set-up. But despite Ford’s dubious credibility, Democrats have already convicted Kavanaugh… and accused the GOP of—get this—trying to silence Ford by asking her to testify. You can’t make this stuff up.
The bottom line here is that Democrats have been trying desperately to prevent this nomination from going forward in the hopes they can thwart it until a more politically convenient time. At the time of this writing, it is not known whether Ford will end up testifying or if the committee will vote next week. The GOP better show some spine because the Ford allegations are just another tactic and a shameful smear on a decent man who should be confirmed without further delay.
Matt Margolis is the author of the book, The Scandalous Presidency of Barack Obama and the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis