Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, September 6, 2018

Kavanaugh Hearings Continue for the Third Day

The Kavanaugh hearings are entering their third day. The place to be to receive thoughtful commentary on Supreme Court happenings is SCOTUSblog. They will be live blogging today's confirmation hearings starting shortly after 9 am eastern. You can find the live stream here. The commentary found on SCOTUSblog is always well balanced if not entirely objective. But even posts that contain a specific point of view do so in a serious, transparent, and respectful way. This is in contrast to how most of us receive our news today. We have to sort through lots of superficial explicit and implicit bias. Some bias is easy to see, some not so much. It's a really unfortunate state of affairs.

There is a surprising contrast to the commentary on the hearings and the facts behind the nominee's voting record. The interesting fact that emerged from the hearings yesterday was how frequently Judge Kavanaugh's opinion aligned with Judge Merrick Garland's opinion. Garland was President Obama's nominee following the passing of Justice Scalia. Judge Garland's nomination was not taken up by the Republican Senate in the election year, so there was no chance for public debate as Kavanaugh is now experiencing. The somewhat shocking statistic is that Judge Garland and Judge Kavanaugh, who both sit on the D.C. Circuit Court, actually voted together 93% of the time: "Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings." Each judge was nominated by an opposing political party, and yet the large majority of their opinions are in congruence with each other. 

The existence of that fact is bit astonishing when compared to the partisan debates we hear from our news sources. More than anything it appears to show that our appellate court judges work hard to find consensus and perhaps our judicial system is not in as much peril as we are sometimes cajoled into believing.

http://lawprofessors.typepad.com/appellate_advocacy/2018/09/kavanaugh-hearings-continue-for-the-third-day.html

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