The Case Against Kavanaugh

After Supreme Court Justice Anthony Kennedy announced his retirement, President Donald Trump nominated U.S. Circuit Judge Brett Kavanaugh to fill his seat. Given Trump’s history of making unqualified and otherwise bad nominations, this news was received very well by the legal community. Legal scholars and journalists have written a barrage of articles praising Kavanaugh’s nomination and defending him against criticism, often from liberal journalists.

Kavanaugh’s standing in the legal community is well-earned. A New York Times Op-Ed by Yale professor Akhil Amar lays out the best arguments for Kavanaugh: he’s a legal giant, as an appellate judge whose reasonings have repeatedly been adopted by the Supreme Court, and he’s a serious scholar, engaging intensely with the legal academic community through teaching and writing for law reviews. Amar, who taught Kavanaugh, writes that “he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum.”

The legal community’s choice to defend Kavanaugh is correct―as a potential Supreme Court Justice, he’s a fantastic conservative pick. He would consistently rule in favor of conservative results because he would genuinely believe those results were the lawful and constitutional ones. Of the current Justices on the court, he’d probably most resemble Chief Justice John Roberts, a reliable conservative vote who crossed political ideological lines in 2012 to uphold Obamacare and whose conservative opinions are grounded in nonpolitical, thoroughly legal reasoning.

The Supreme Court could use more Justice Roberts. While the left may not like the way he votes, he brings to the court a nonpartisan dignity and genuinely legalistic philosophy. Kavanaugh would likely be another Roberts.

And though they often voted together, the writing styles of Roberts and the late Justice Antonin Scalia could not be more different. Whereas Scalia was a firebrand, employing phrases like “jiggery-pokery” in his opinions and dissents, Roberts is far gentler, expressing no uncertain terms of disagreement with his dissenters but never framing their arguments as absurd.

Despite the value he would bring to the Court, some have criticized Kavanaugh for his expansive view of Presidential immunity—the idea that the President is, to some degree, immune from the law—which is especially concerning to these critics in light of Trump’s presidency.

These concerns are misguided. In addition to the fact that Kavanaugh appears to be, at least based on a report from the Hill, walking back his earlier position on immunity, that earlier position was not a constitutional one. The 2009 Minnesota Law Review article by Kavanaugh that has attracted unease argues not that the President is constitutionally immune from criminal investigation and civil lawsuits, but that given how difficult the President’s job is, Congress should pass a statute temporarily protecting the President from the law until the end of their administration—that’s it. It was a policy suggestion, not a judicial theory. Given that Congress has not passed a statute granting blanket temporary immunity to the President, there is no reason to believe that Kavanaugh would rule in favor of such immunity.

Some have attempted to paint Kavanaugh as a hypocrite for taking this position nine years after having played a substantial role in Independent Counsel Kenneth Starr’s investigation of President Bill Clinton. But Kavanaugh is not a hypocrite; he’s someone who had a change in opinion following an experience. Kavanaugh wrote in that 2009 article, “This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.” He wrote that his opinion had changed after he spent time serving in the Bush Administration and personally saw how difficult the President’s job was.

Let’s be very clear: people who hold an opinion, see evidence against that opinion, and openly change their minds are not hypocrites. They are intellectually honest people who reject the sort of zealotry under which evidence that is contrary to one’s worldview is rejected out of hand. And we should absolutely not punish those people for being open to changing their minds, as that would encourage zealotry and discourage intellectual honesty.

There is also concern that Kavanaugh may have lied in his 2006 Senate confirmation hearing for the judgeship he holds now. Kavanaugh told the Senate that he had not known about the Bush Administration’s torture policies until the news reports started coming out, but it was revealed a year later in a Washington Post story that Kavanaugh had argued while serving in the White House that Kennedy “would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard.”

A Justice Department investigation, however, found no grounds for criminal prosecution (Kavanaugh was under oath, so he would have perjured himself had he lied). Given that said investigation was from the Bush Administration, though, some have expressed doubt, including Senator Dick Durbin (D-Ill.), who plans to question Kavanaugh about it during his confirmation hearing. This could become a serious problem with Kavanaugh, but it’s not as of now.

Other criticisms of Kavanaugh focus on what the results of his jurisprudence as a Justice would be. The most prominent of these criticisms focus on abortion and gun control. On abortion, Senate Democrats have characterized Kavanaugh as a hardliner who would overturn Roe v. Wade the minute he is given the opportunity. But Kavanaugh has expressed agreement on Roe v. Wade with Roberts, who has described it as “settled law.” And the Roberts approach to settled law is to uphold it, as he did in 2018 with Pavan v. Smith, where he essentially voted to maintain nationwide marriage equality despite having voted against it in 2015.

The gun control criticism is more reasonable. Kavanaugh is strongly supported by advocacy groups like the NRA and argued in a 2011 dissent that “a ban on a class of arms...is equivalent to a ban on a category of speech.” Additionally, he believes that the only permissible gun regulations are longstanding ones, a philosophy that could stop innovative gun policy.

All this is legitimately concerning, but Kavanaugh’s jurisprudence on guns is limited, and while Senate Democrats should press Kavanaugh hard on gun control during his confirmation hearing, they should hold back on judgment until then. With that said, Kavanaugh’s view of the Second Amendment could turn out to be a deal-breaker. What is certain, though, is that he will disagree with the liberal interpretation—and that alone is not a good reason to reject him.

If Kavanaugh’s view is truly fringe, as it may turn out to be, the Senate may reject him. But if Kavanaugh’s view is in line with contemporary conservative jurisprudence, Democrats should overlook them; after all, liberal favorite Ruth Bader Ginsburg was confirmed to the Court 96-3 when the Senate was only 56-44 Democratic.

Kavanaugh is intrinsically a solid nominee, and criticisms of him are either exaggerated, unfounded, or awaiting further inquiry at the hearing. But despite all his superb qualities, Senate Democrats should fight his nomination for one simple reason: Merrick Garland. President Obama, a second-term, fourth-year President, nominated the well-qualified and left-of-center Chief United States Circuit Judge to replace Associate Justice Antonin Scalia in 2016. But the Senate not only rejected Garland’s nomination, but it also refused to hold hearings for him. Senate Republicans refused to recognize Garland as a legitimate nominee.

Article II, Section 2 of the Constitution states,“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court [sic].” By refusing to let Obama meaningfully nominate a Justice, Senate Republicans stopped him from performing his basic Constitutional duty and essentially denied the legitimacy of his presidency. After Trump had nominated U.S. Circuit Judge Neil Gorsuch a year later, the Senate confirmed him, filling Scalia’s seat with another Republican-appointed hardline conservative.

The Republican justification for doing this to Garland was that it was an election year. The American people were deciding who the next President would be when Scalia passed away, so the American people ought to pick the President who would pick his replacement. In addition to the fact that several Republican Senators later said they would also refuse to consider nominees from Hillary Clinton should she win, shedding some suspicion on the Senate Republicans’ intentions, this reasoning was facially illegitimate.

For one thing, it was unprecedented. Four Supreme Court nominations have been made by presidents not running for re-election during the last years of their presidencies; one was confirmed and became Justice John Catron, one was confirmed but turned down the position, one faced hearings and was brought down by ethics concerns, and one was nominated to fill a seat that it became retroactively clear would not be vacated.

For another, the Senate’s actions were deeply troubling on constitutional grounds. Nominating Supreme Court Justices is an essential part of the President’s job. If that can be denied during an election year, so can any other part of their job. If it is indeed the case that during an election year presidents are less constitutionally able to do their jobs, then the President of the United States is to some degree illegitimate a quarter of the time.

That’s patently ridiculous. There is nothing, in the Constitution or elsewhere, suggesting that the President is any less the President every fourth year than they are the other three. “It’s an election year” is as good a reason to deny the President the ability to do their job as “the Attorney General has blond hair” or “traditional Western chord progressions are boring.” The illegitimacy of the Senate’s refusal to give Garland hearings, combined with statements of intent by some Senators to do the same to any Clinton nominees, reveals the real reason for the Senate’s blocking of Garland: President Obama was a Democrat, and they didn’t want him to tip the Supreme Court in the Democrats’ favor for the first time in half a century.

We urgently need a national conversation in which everyone admits that Senate Republicans stole a Supreme Court seat from a Democratic president and handed it to a Republican president. Merrick Garland should be on the Supreme Court right now, and Neil Gorsuch should not (had the Senate given Garland hearings, he would very likely have been appointed).

Until that conversation happens, Senate Democrats should fight any and all Republican Supreme Court nominations. Critics of this from the right and the left will argue that this is fighting fire with fire. And to that, I say this is an accurate characterization, but the alternative is being burnt to a crisp. If the current political situation is such that Republicans will block Democrat-nominated judicial appointments, Democrats would do better to reciprocate than to magnanimously let Republicans take over the judiciary and tilt the entire Judicial Branch in Republicans’ favor for generations to come—an outcome that would be not only bad for Democrats but also fundamentally opposed to the ideally nonpartisan character of the judiciary.

Until we recognize the implications of Senate Republicans’ actions in 2018, Democrats need to fight fire with fire and reject Kavanaugh’s nomination.