Judicial

Senate should say no to Kavanaugh

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The United States Supreme Court plays a pivotal and indispensable role in the American system of government. The Framers envisioned the Supreme Court as the independent guardian of the Constitution and the symbol of the rule of law, dispensing equal justice under law without fear or favor. To ensure the court had the requisite independence from the political branches of government, Article III, section 1 of the Constitution provides that “Judges of the supreme and inferior courts shall hold their Office during Good Behavior” and shall receive a salary which “shall not be diminished during their continuance in Office.”

The Framers wisely entrusted the responsibility of confirming a person nominated to serve on the Supreme Court to the United States Senate. In Federalist Paper No. 78, Hamilton wrote that the Senate was given the power to ‘advise and consent’ to presidential appointments to ensure that in the person nominated was united “the requisite integrity with the requisite knowledge.” An added safeguard of Senate concurrence to a president’s nominee is that “the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of [the President].”Federalist Paper No. 76.

{mosads}In the view of the Framers, the Senate was the proper forum to repose the ‘advise and consent’ power because senators were older, presumably wiser, more mature and sophisticated, and with six-year terms not constrained by the prospect of an imminent election or beholden or dependent upon the executive. Finally, the Senate consisted of a smaller number of members, making it harder for any individual senator to avoid accountability and find anonymity.

As stated earlier, the paramount objective of the Senate in exercising its ‘advise and consent’ prerogative is to determine whether a nominee possesses “the requisite integrity with the requisite knowledge.” In the case of Brett Kavanaugh, who has been nominated to succeed Associate Justice Anthony Kennedy, the answer is a resounding “no.”

Nominees before the United States Senate bring with them two things: their records and themselves. And it should be noted that, as an initial matter, the burden of establishing fitness for appointment to the Court is on the nominee, not the Senate or the president. If there is to be a benefit of the doubt, as the late Sen. Robert Byrd (D-W.Va.) pointed out in 1991, it should be resolved in favor of the “Court and the country.”

The Senate should refuse to consent to this nomination because Brett Kavanaugh has demonstrated by his conduct and testimony before the Senate Judiciary Committee that he manifestly lacks the temperament, the honesty, and impartiality reasonably expected of a traffic court judge, much less the highest court in the land and the court whose interpretations of the Constitution protect or abridge the rights of liberties of hundreds of millions of Americans.

Brett Kavanaugh’s Sept. 27, 2018 testimony before the Senate Judiciary Committee was a case study in intemperate behavior. As an initial matter, his demeanor was inconsistent with that of a responsible judge. On many occasions, Kavanaugh evaded legitimate inquiries from senators with flippant remarks and rhetorical questions.  He repeatedly cut off questioning from senators, meandered when asked direct questions, and dissembled in the face of inquiries that went to the heart of the allegations lodged by the woman accusing him of sexual assault. Perhaps most troubling from his testimony-as-spectacle, was his brazen claim that the investigation of credible claims of sexual assault and excessive drinking were a function of “a calculated and orchestrated political hit” driven by “pent up anger at the 2016 election” and “revenge on behalf of the Clintons.” Kavanaugh then threatened senators and “left-wing” groups and organizations opposing his nomination, saying: “what goes around, comes around.” Such statements are wholly disqualifying for any jurist, let alone an individual seeking a seat on the highest court on the land.

In the face of all this, the White House initiated nothing more than a farce to purportedly investigate the serious accusation against him. This effort is nothing more than cover to ram through this nomination. Critical witnesses who could corroborate aspects of Dr. Ford’s testimony were not interviewed; neither Dr. Ford nor Brett Kavanaugh were interviewed; and, individuals in a position to corroborate a second alleged victim of Kavanaugh were not interviewed. The FBI investigation which occurred into Kavanaugh’s alleged wrongdoing was inchoate with respect to certain, critical episodes of his life. Confirming this nominee under this serious cloud of doubt puts at risk the integrity of the Supreme Court.

Because Brett Kavanaugh fails the character test, the Senate should reject his nomination to the U.S. Supreme Court, the final arbiter of equal justice under law.

Congresswoman Jackson Lee is a Democrat from Texas’s 18th District. She is a senior member of the House Committees on Judiciary and Homeland Security and is ranking member of the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.

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