OPINION: The Orchestrated Disruptions Of Kavanaugh’s Hearings Demonstrated Neither Democracy Nor Free Speech

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Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Beyond Judge Brett Kavanaugh’s grace under assault and Senator Ben Sasse’s brilliant lecture on the failure of the Congress to exercise and thereby protect its constitutionally prescribed legislative functions, there was little to admire in the Senate Judiciary Committee’s hearings on the nomination of Kavanaugh as an associate justice of the Supreme Court.

Democrats on the committee struggled desperately to condemn the process and portray the nominee as evil incarnate, while Republicans slow-pitched softballs to a nominee capable of hitting intellectual curveballs out of the park.

But senators from both sides of the highly partisan aisle seemed to agree on one thing — that the hearings, and more particularly, the orchestrated disruptions by anti-Kavanaugh protesters, were democracy in action. With the exception of Senator Cornyn’s suggestion that mob rule had taken over, Republicans and Democrats alike excused the disruptions as the exercise of the free speech essential to democracy.

First, the substance of the hearings, if what transpired can be called that, was scarcely an example of effective democracy in action. Before the gavel fell to open the hearings, every member of the committee had declared how they planned to vote.

In a democracy, people of differing opinions listen to the arguments made by others, adapt their own views if persuaded, recognize when their position lacks the votes to prevail and seek compromise to advance their position.

In a democracy, nominees for the independent judiciary would be evaluated on the basis of their professional qualifications and character, not on the basis of guesses or predictions of how they might rule on particular cases in the future.

Approval only of judges who will likely support a particular political agenda runs counter to the very idea of an independent judiciary, without which democracy cannot succeed.

The perception that our federal judiciary has become more partisan and less independent over the last several decades may reflect reality, but democracy will not be advanced by encouraging that trend through politicized confirmation hearings. As Sen. Sasse pointed out, the remedy for a politicized judiciary lies not in getting your own partisans on the bench, but rather in Congress taking responsibility for settling political questions that now default to the courts.

Second, the orchestrated, serial disruption of the hearings from start to finish demonstrated neither democracy in action nor the exercise of free speech.

As the Supreme Court has long recognized with its time, place and manner jurisprudence, free speech is not a free-for-all. The point of free speech is to inform and persuade, not disrupt and silence those with whom we disagree.

Sadly, the dozens of mostly young people politely escorted or gently dragged from the hearing room have received their education on free speech in an academy that tolerates and even condones the silencing of unpopular views.

Democracy works only when everyone is free to express his or her views in an orderly manner and willing to accept as legitimate the decisions of elected representatives.

Since the election of Donald Trump as president, it has become commonplace to say that our democracy is threatened.

Just last week, former president Barack Obama implied as much in telling his audience at the University of Illinois that “you need to vote because our democracy depends on it.” But voting accomplishes nothing if those we elect are hellbent on gaining and maintaining power rather than seeking and creating common ground.

With Supreme Court nominees, it’s either yes or no.  There is no middle ground.  But there is middle ground — at least, there used to be, — on the process we use to evaluate judicial nominees and the qualifications we seek in those nominees.  Because the hearings have become a stage for political grandstanding with the nominee serving as either hero or villain, they offer no semblance of effective democracy in action.

Nothing that happened over four days will have any effect of the votes cast in the committee or the full Senate.

If our democracy is threatened it is not by an ill-mannered, tempestuous president who can be voted out of office in due course. Rather, it is threatened by the failure of our elected representatives to understand and pursue the basic requirements of democratic government.

Jim Huffman is dean emeritus at Lewis & Clark Law School in Portland, Oregon.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.