Republicans are crying foul, claiming that Democrats have hijacked the Supreme Court confirmation process and politicized it. So, too, has nominee Brett Kavanaugh, disturbingly enough. But it’s Republicans who’ve gone rogue, Republicans whose strategy is to shred any institutional barrier they can think to attack. None of this is normal.
They’ve got the confirmation process all wrong.
Arguing that a confirmation shouldn’t be affected (nor an impeachment initiated) in the absence of a criminal conviction is beyond absurd. There’s no law specifying that a nominee under criminal investigation can’t be confirmed. Probably because the criminal justice system has been abused by the majority before. Also because the Founders didn't imagine that it would be necessary—same as they trusted the legislature to treat impeachment as a remedy that should far precede actual criminal charges.
There’s no due process issue.
Legally speaking, there’s a specific meaning to the phrase “due process.” It goes back to the Fifth and Fourteenth Amendments. Due process in the legal sense protects Americans’ rights to life, liberty, and property. The chance to be the subject of a Senate vote for a government role doesn’t qualify under any of those categories, no matter how generously interpreted.
Similarly, the standard of proof used in a criminal trial is high because real penalties may result, the kind that affect a vested interest. As Sen. Dick Durbin (D-IL) points out, “no one, not any single American, is entitled to a seat on the Supreme Court.” Kavanaugh can’t be denied due process here; he isn’t entitled to place any particular burden of proof on his critics.
Republicans seem to have skipped several steps. Even protesting efforts to investigate Kavanaugh implies they, and he, have been wronged. That literally can’t be the case: He hasn’t been confirmed; he isn’t already in possession of a lifetime seat on the court and at risk of having it yanked. It’s Republicans who are in the business of stealing Supreme Court seats.
If anyone’s being deprived of anything, it’s the senators who actually want to perform their duty of “advice and consent.”
That’s why Sen. Jeff Merkley (D-OR) is suing: He’s alleging that the White House has interfered with the Senate’s “advice and consent” role in confirmation by withholding documents as an exercise of executive power. It’s a long shot, but makes an important point.
Every Democrat on the Judiciary Committee, and even Sen. Lisa Murkowski (R-AK), supports investigating Kavanaugh. Murkowski urged Deborah Ramirez, the second woman to make allegations of sexual assault against Kavanaugh public, to come forward.
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