Yesterday, Sen. Tim Scott, assisted by Sen. Marco Rubio, torpedoed the nomination of Ryan Bounds to the Ninth Circuit Court of Appeals. Scott couldn’t vote to confirm Bounds because the nominee, as a college student, ridiculed the cult of diversity as preached by “some of the more strident racial factions of the student body.”
Senate Democrats promptly and predictably turned Scott’s ridiculous reservation against Judge Brett Kavanaugh. They have been demanding millions of pages of documents Kavanaugh wrote, or even handled.
Republicans have resisted.
But now, thanks to Scott and Rubio, Democrats can argue ( and already have) that if Bounds’ college writings are relevant to confirmation as an appellate judge, all of Kavanaugh’s adult writings are relevant to confirmation as a Supreme Court Justice.
The argument is unpersuasive because Bounds and Kavanaugh are not similarly situated.
Bounds, though well-qualified for a court of appeals judgeship, has never been a judge. Thus, he had no judicial opinions from which to glean his approach to judging.
Kavanaugh has been a judge for 12 years on the most important appeals court in America. He has written more than 300 opinions. Thus, the Senate can assess his approach to judging without examining stray utterances from decades ago.
In addition, Kavanaugh went through a confirmation battle — one that lasted several years. The Senate eventually confirmed him. So again, the Senate really only needs to review what Kavanaugh has written since being confirmed in order to assess his suitability as a Justice. Whatever came before has already been “litigated,” as President Obama liked to say.
Finally, Bounds’ case has no relevance to the question of whether the Senate needs to see every paper that passed through Kavanaugh when he was White House Staff Secretary. It was absurd to reject Bounds based on snarky writings from his undergraduate days about diversity. But at least the statements that bothered Scott were written by Bounds.
Kavanaugh, by contrast, was basically a traffic cop as White House Staff Secretary. Reams of paper he did not write flowed through him. The demand to see all of that paper is purely dilatory, as Sen. Bob Corker says. Nothing about Bounds’ situation supports the demand.
One hopes that Sens. Scott and Rubio will take this position. The sooner, the better.