There is no shortage of strong, diverse opinions on the nomination of Brett Kavanaugh to serve on the U.S. Supreme Court. I’ve struggled to formulate my own informed opinion and have done more associated research than I probably should have. Below are my brief thoughts (okay, relatively brief thoughts) in several arenas followed by my current conclusions.
Qualifications
Kavanaugh is graduate of Yale Law School and taught at Harvard Law School. He’s a former clerk for two federal appellate judges and for Justice Kennedy on the Supreme Court. He worked on Ken Starr’s legal team and served in the solicitor general’s office in the Bush II administration. He has served on the DC Circuit Court of Appeals for 12 years. Is Brett Kavanaugh qualified to serve on the Supreme Court? Of course he is. I doubt he’s one of the best legal minds of his generation, but there can be little argument that he is qualified.
Political Tilt
Prior to becoming a judge, Kavanaugh was very heavily involved in conservative causes. During his confirmation hearings for the DC Circuit court, Sen. Dick Durbin (D-Illinois) – noting Kavanaugh’s appearance in nearly every major political legal battle of the time – dubbed him the “Forrest Gump of Republican politics.”
This is not a surprise. Kavanaugh is a conservative Republican and he hasn’t exactly tried to hide that fact. With Republicans in control of the Presidency and the Senate, it would only be a surprise if the nominee had a less conservative background. I can’t hold someone responsible for having political opinions and acting upon them as long as that person doesn’t try to impose those opinions on others from a non-partisan perch. Unfortunately, there is a glaring example of just that behavior in Kavanaugh’s past. (See below.)
Written Judicial Opinions
It is quite reasonable for the Senate to try to determine how Kavanaugh will rule on the many important issues likely to face the Court during his tenure. These include the extent of Presidential power and privilege, privacy rights, gun rights, and stare decisis as it relates to several existing Supreme Court decisions – most notably Roe v. Wade (abortion rights) and Obergefell v. Hodges (gay marriage rights).
Since most modern Supreme Court nominees have refused to directly weigh in on matters that could later come before them, it is quite unlikely that the upcoming confirmation hearings will provide any relevant information in this arena. Thus, Kavanaugh’s paper trail as a judge is the best source for insights and, given that he has authored approximately 300 opinions for the DC Circuit Court, there’s a decent volume of raw data.
Indeed, a fascinating article in the Washington Post took a dispassionate data analytics approach to determine Kavanaugh’s legal tendencies, analyzing his published judicial decisions as compared with those of other jurists. The analysis considered dissents, vote polarization, and citations of partisan precedents and included both sentiment and style analyses of the writings themselves. The study’s determination was that Kavanaugh is “an uncommonly partisan judge” who is “highly divisive in his decisions and rhetoric.”
Again, this is hardly a surprise. Kavanaugh is considered a textualist and originalist. Many of his contemporaries are not. I can respect a judicial philosophy with which I disagree as long as it is consistently applied.
I’ll admit that I haven’t read all 300 of Kavanaugh’s opinions, but I did read two important ones and summaries of numerous others (which, unfortunately, likely puts me ahead of most of the Senators that will vote on his nomination). While I disagree with many of his decisions, two stand out as particularly inconsistent with his own judicial philosophy while being remarkably consistent with his own personal beliefs. (See below.)
Political Considerations
In a perfect world, only the best legal minds – regardless of philosophy – would ascend to the highest court in the land and the resultant debates would be a testament to American democracy. I’m reminded of an excellent episode of The West Wing where a very brilliant and very liberal Judge Evelyn Baker Lang (played by Glenn Close) and a very brilliant and very conservative Judge Christopher Mulready (played by William Fichtner) were concurrently appointed to the Supreme Court after engaging in an intense but highly respectful debate focused entirely on very different interpretations of the Constitution.
Alas, this is not a perfect world, Aaron Sorkin isn’t writing this script, Brett Kavanaugh is no Christopher Mulready, and the selection of a Supreme Court Justice is an intensely political blood sport.
Mitch McConnell has urged Democrats to “put partisanship aside” and give Kavanaugh “the fairness, respect, and seriousness that a Supreme Court nomination ought to command.” That’s hilarious. The man who refused to even allow consideration of President Obama’s nomination of Merrick Garland now wants everyone to be a grown-up.
Many Democrats are, quite understandably, still looking for payback for Garland’s poor treatment. Some have argued, not without merit, that the same election year argument that McConnell used to block Garland should hold for Kavanaugh.
I’ll argue instead for Democrats to allow the confirmation hearings to proceed in a respectful manner – not because Republicans want it for a Republican nominee but explicitly because they wouldn’t allow it for a Democratic nominee. The far-right will rejoice and the far-left will go ballistic. But the sane middle will notice and will eventually reward the adults in the room.
Judicial Restraint
This is a loaded term these days, since many people seem to define an activist judge as one that rules against them. By judicial restraint, I mean the ability of a judge to set aside ALL personal opinions and just interpret the law. While I may strongly oppose any given opinion, I can at least respect one that focuses solely on the law, is consistent with other rulings, and does not attempt to impose personal beliefs or politics.
It is on these grounds that I have some objections to Kavanaugh.
Ken Gormley’s 2010 book, “The Death of American Virtue: Clinton vs. Starr” included passages from a memo sent by Kavanaugh to “Judge Starr” just prior to President Clinton’s grand jury testimony:
“[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.”
Kavanaugh then proceeded to list numerous questions that he said should be asked of Clinton. For example:
If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?
Regardless of whether or not one agrees with the above argument, the fact is that it is not a legal argument. It is a very personal argument. In Kavanagh’s role as an investigator, it was simply not his place to pass moral judgment and it was particularly egregious that he let his personal judgment inform his legal opinions. While engaging in an extra-marital affair and masturbating into a trashcan aren’t exactly presidential acts, they aren’t illegal acts. Kavanaugh knew this but wanted Clinton punished for moral transgressions anyway. While his questions may well have been fair game from a political perspective to embarrass Clinton, the special investigation’s task was ostensibly apolitical. Kavanaugh knew this but wanted to score political points anyway. Not cool.
In Heller v. DC, Kavanaugh argued that semi-automatic weapons were constitutionally protected because they’re in common use. I love this. Marijuana is in common use, too. And in Texas, it is randomly illegal to own more than six sex toys (yes, really) despite their widespread use. So we’ll be cool with Kavanaugh on the court, right? Unfortunately, I see no “common use” doctrine in the Constitution. A strict constructionist should have been able to find a better argument.
In Priests for Life v. HHS, Kavanagh argued that requiring a religious organization to submit a form substantially burdened their religious freedom. I’m all for religious freedom, but I see no clause in the Constitution that precludes common sense.
My Conclusions
Is Brett Kavanaugh a liberal’s dream? Of course not. He’s a staunch conservative who has demonstrated only a limited capacity to produce legal findings that are antithetical to his personal beliefs. However, there were certainly choices that were substantially more conservative and substantially less qualified. Remember, Trump could have nominated someone like Rudy Giuliani.
If I were a Senator, I’d definitely ask the tough questions. I’d ask Kavanaugh to defend his actions as part of the Clinton inquiry. I’d ask him to defend his writings that seem to be in conflict with his stated judicial philosophy. I would at least attempt to get him to state under what circumstances he would be inclined to overturn Supreme Court precedents that are consistent with contemporary popular opinion.
However, barring any surprises, and despite Republicans’ complete disregard for the constitutional right of a Supreme Court nominee to a fair hearing, I would give Kavanaugh that fair hearing. Since I also believe that the Senate should generally reject a nominee only on grounds of qualifications, I would likely vote in favor of confirmation. Particularly for a Senator in a 2018 swing state, a “no” vote here is certainly not worth their Senate seat.
My personal opinion is that Democrats should save their ammunition for a future nominee that is “supremely” unqualified. It could happen.