On Day 33 of the Kavanaugh confirmation process, the battle, at this stage, continues to be a struggle over whether opponents can find some “dirt,” in millions of page of government records, on Judge Kavanaugh that will stick politically, and whether they can delay the confirmation hearings and vote, as we’ve detailed during the past two weeks.

Opposition Senators are angling over the politics of whether or not they should meet with the nominee and on what timetable.

It remains to be seen what will come of the public record requests relating to Kavanaugh’s personal work history, whether these issues will evaporate before the confirmation hearings begin (not likely), or what role they will play in Senators’ questions during the hearings.

It has yet to be asked, however, what opposition Senators did to review Kavanaugh’s government work history in the three years between 2003-2006 during which they fought his nomination (twice by President Bush) to the U.S. Court of Appeals for the D.C. Circuit.  THAT was the appropriate time to review that work history.

Not content with Kavanaugh’s work records while staff secretary to President Bush in the White House, the Associated Press and the New York Times are using Maryland’s open records law (FOIA) to attempt to review Judge Kavanaugh’s wife’s work emails as “district manager” for a town in Maryland, looking for anything “controversial” that Kavanaugh may have written to his wife, or vice versa.

Missing in all this is an analysis of the real record that’s important to this nomination now:  Kavanaugh’s more than 300 opinions during his 12 years as a judge on the D.C. Circuit, the record that best captures Kavanaugh’s judicial temperament and philosophy and his credentials to apply the law and the Constitution as a Supreme Court Justice.

The opposition strategy, unfortunately, reflects a troubling political problem: a sizable political constituency sees Supreme Court justices as simply super-legislators who should be judged on the same basis as politicians.  The fundamental difference between judges and legislators that is essential for a constitutional republic and the preservation of self-government has been erased among this populace.  What’s important is not the wisdom or competence of judges’ application of the law and the Constitution but the political results of their decisions.

That fundamental problem has established the climate for Supreme Court nominations for three decades, since the Bork Debacle of 1987, and it won’t be resolved before the vote on Judge Kavanaugh, but it might be positively shaped in the future, we can hope, by a growing majority of Justices on the Supreme Court who can clearly demonstrate and explain, in their application of the law and the Constitution, that fundamental difference.