Ah, sports. No confirmation hearing can be complete without a little small talk about which teams the senator supports, and which sports the nominee plays, and which sporting events the nominee likens his job to, and also which sports the senator likens the confirmation process to. It’s a kind of shorthand way of everyone having a beer in the Senate chamber. We’re all just sports fans here, talking about, you know, sports.
At the Brett Kavanaugh Supreme Court confirmation hearings, these endless invocations of teamwork and coaching girls’ basketball start to ring a bit hollow as a metaphor for doing justice. No matter how many times we talk about fair play, there can be no denying that what has happened this week in the Senate Judiciary Committee is neither sporting nor bound by any rules.
For one thing, we are witnessing a confirmation process that is being guided by committee practices crafted on the fly. As arcane as the fight over thousands of pages of “committee confidential” documents may seem, the fact is that the great bulk of Kavanaugh’s documents have not been released. They are being vetted not by the National Archives but by a Republican lawyer. Senate Democrats on Thursday announced that they are willing to publicly release committee-confidential documents and suffer the consequences, in part because if this were a sporting event, it would be clear by now that the umpire uniforms are issued to only one side.
But the sports chat rankles even more because all the talk in the abstract about coaching girls’ basketball is happening as real women are screaming about their real bodies as they’re being physically dragged out of the Senate chamber by police. Sen. Orrin Hatch may fuss about ugly public outbursts, and Judiciary Committee Chairman Chuck Grassley can pretend this is all media fakery engineered by Democrats, but the reality is that a whole lot of mostly white men are talking about the fact that the fate of women’s bodies will be decided by a federal judge who is pretending he has no opinions on this matter, and this will have very real impacts on women for generations to come. As much as the white male Republicans on the committee might roll their eyes and deplore incivility, women are very, very angry about all this, and they are expressing it corporeally. That isn’t a sporting event. It is life and death.
Nobody doubts that Judge Kavanaugh loves his daughters and their teammates. They are not the ones who will be hurt if and when safe and legal and affordable abortion is denied to the poorest, youngest, and most vulnerable women in the country, and they are not the ones who will lose access to health insurance that covers pre-existing conditions or reproductive care. Wealthy women had access to quality health care, contraception, and abortion before Roe, and they will have it after. The women being dragged bodily out of the chamber are screaming in no small part because there are children being dragged from their families this week—in violation of a consent decree and a court order—and they don’t have the benefit of Senate rules of regular order. That too isn’t a sporting event. That too is life and death.
Perhaps that’s why one of the most gripping moments of the hearings came late Wednesday night when Sen. Kamala Harris asked whether Kavanaugh was aware of any laws “that give the government the power to make decisions about the male body.” It was not a legal question. It was simply a way to make concrete what has been happening all week. Kavanaugh’s response—“I’m not thinking of any right now, senator”—was perfectly truthful. There are none. That’s why a roomful of men talking about undue burdens in Planned Parenthood v. Casey isn’t a sporting event for these spectators. When Sen. Lindsey Graham smugly told the nominee on Thursday morning that “the last time I checked, liberty didn’t equate to abortion,” that wasn’t a performance. It was a promise.
The most laughable manifestation of the “It’s all just sports” talk this week comes in the invocation, again, of the trite metaphor that Supreme Court justices are mere umpires. The neutral umpire claim was laughable when John Roberts minted it, and it is even more trite today. Senate Republicans, including Ted Cruz, continue to try to claim that Brett Kavanaugh isn’t a partisan by highlighting the congruence between his voting record and that of Merrick Garland—the same Merrick Garland to whom they denied a hearing and vote. If their records are the same, then why was Garland precluded from getting a hearing? Again, let’s note that the “neutral” umpire uniforms are issued to only one side.
In some sense, the “smoking guns” of the Kavanaugh hearing are no different than the revelations in the Bob Woodward book and the New York Times’ anonymous op-ed. They keep showing, time and again, that what we all suspected to be true is in fact true: Brett Kavanaugh is a lifelong movement conservative who will vote as he has voted for years—as a movement conservative. That is likely unstoppable. But this is not a sporting event and it’s not a contest constrained by any existing rules. On Thursday morning, Sen. Dick Durbin reminded the chamber that protesters are the “cost of democracy”— but in this hearing they are also the casualties of it. It’s not a game when the spectators are also the victims.