Justice Kennedy’s replacement must be an honest and fair-minded arbiter, Kavanaugh falls well short of this test
The Kavanaugh nomination: A defining moment for the Senate, the court, and the country
With the contentious hearings completed, the Senate owes it to the country to remain focused on the central issue raised by Judge Brett Kavanaugh's nomination: his extreme and dangerous views and judicial philosophy. His champions deserve credit for candor; the nomination is explicitly intended to lock in the right-wing majority on the Supreme Court for the next 30 years. The Senate must now decide whether that is the right outcome for the court, and the country.
Judge Kavanaugh's supporters contend that the Senate's role in this process is limited and should focus only on his credentials and general good character. But as Robert C. Byrd argued in 1987, "'qualified for office' is not limited to technical competence but extends to general suitability. The candidate's personal philosophy and ideology are, therefore, relevant considerations."
The Senate's scrutiny of Supreme Court nominations has caused 26 of them to be rejected or withdrawn-fully 20 percent of the nominations to the court in our history. In the past half century alone, the Senate has rejected nominations by Presidents Johnson, Nixon (2) and Reagan, while two others were withdrawn. The Senate's consideration of Judge Robert Bork is the most relevant precedent. Bork had extraordinary credentials as a legal scholar and federal judge, but the Senate, after hearings that rose, in the words of Linda Greenhouse, the Pulitzer Prize winning New York Times reporter, to the level of "profound constitutional debate," rejected Bork's nomination by a vote of 58-42 because his constitutional views were so extreme.
Although Judge Kavanaugh has a more congenial personality than Bork, senators should not be under any illusions. He is the antithesis of an open-minded, fair-minded judge; he is instead a partisan, ideological warrior with strongly-held, extreme views across the board. A vocal critic of "unenumerated" rights, Judge Kavanaugh poses a clear threat not only to Roe v. Wade, but to the line of cases before and since Roe that guarantee a right of privacy to women, and men, to make the most personal life decisions. He has said that states cannot ban AR-15 assault weapons, although the Supreme Court had held that the Second Amendment protects the private right to own a handgun but permits reasonable regulations of weapons. And he has expressed the view that the strict wall between church and state is "wrong as a matter of law and history."
On a range of other key issues, Judge Kavanaugh hews the line of the Federalist Society and the current group of conservative justices. He is reflexively pro-business, consistently taking the side of corporations against workers and consumers. He would vote to continue opening the floodgates of unlimited amount of "dark money" into our political system. And he would be a reliable vote against affirmative action and in favor of state laws limiting the voting rights of minorities, and the rights of immigrants.
A data-driven study of Judge Kavanaugh's writing by Elliot Ash and David Chen found that his opinions and rhetoric were more extreme and polarizing than those of Judges Bork, Alito or Gorsuch. "More so than his colleagues," Ash and Chen note, "he has expressed dislike toward Congress and the federal government, as well as working-class groups (labor unions and farmers)." After summarizing the evidence, the authors concluded: "Kavanaugh is an outlier judge; he would not be your average justice. On the evidence derived from the content of his decisions, he would be more radical than his colleagues ... [He] is much like the man who selected him - highly divisive in his decisions and his rhetoric."
Those supporting the nomination, like The Federalist Society, argue that Judge Kavanaugh is conservative in the same way that the justices appointed by Democratic presidents are liberal. But there is a profound difference between a justice who brings to the court a disposition, as opposed to a justice who comes with an agenda. And while the Senate could confirm Judge Gorsuch to replace Justice Scalia without shifting the ideological balance of the court, no such possibility exists with Judge Kavanaugh, who would be replacing the swing vote of Justice Kennedy.
Judge Kavanaugh's views about presidential power are also deeply troubling. While a reasonable argument can be made that a sitting president cannot be indicted while in office, Kavanaugh goes well beyond that position, claiming "we should not burden a sitting President with civil suits, criminal investigations or criminal prosecutions." Had that been the law in the 1970s, the Supreme Court would never have had the chance to rule on U.S. v. Nixon, dealing with the Watergate tapes, and President Nixon would never have resigned from office. Historian Tim Naftali, the former director of the Nixon Presidential Library, said of Kavanaugh:
"It's an especially dangerous time to have a Court that supports executive supremacy."
The Senate's right and responsibility to reject Judge Kavanaugh based upon his philosophy would apply even if he had been nominated by a normal president in normal times. But senators are not obligated to ignore the context in which a nomination is being considered. America is a bitterly divided nation, with a president who is subject to the most serious investigation in our country's history. At stake is the direction of the Supreme Court for the next 30 years. Should the dead hand of Donald Trump be on our children and grandchildren long after he is gone?
Ira Shapiro is a former Senate staffer, a Clinton administration trade official with ambassadorial rank, and the author of Broken: Can the Senate Save Itself and the Country? (2018), the sequel to The Last Great Senate: Courage and Statesmanship in Times of Crisis (2012).