A historical case for Justice Kavanaugh

A historical case for Justice Kavanaugh
© Greg Nash

For a generation of Americans, ever since President Ronald Reagan, conversations about nominations to the Supreme Court have almost exclusively revolved around winners and losers. Do conservatives or liberals win? Do those who label themselves “pro choice” or those who are considered “anti-abortion?”  What happens to the Second Amendment if the nominee is confirmed? What about the “right to privacy” or health care? These have become the perennial and defining hallmarks of the nation’s notion of what is at stake when someone is nominated to a seat on the court.              

Early reaction to President TrumpDonald John TrumpTrump faces high stakes in meeting with Erdoğan amid impeachment drama Democrats worry they don't have right candidate to beat Trump Trump threatening to fire Mulvaney: report MORE’s nomination of Judge Brett Kavanaugh is no different. Even before his nomination, members of the Senate and various interested parties were starting to draw lines in the sand about those policies and issues they hold sacred. Almost immediately after the nomination, they started portraying the jurist as either a threat to the American way of life or the conservative savior of the Constitution. Millions of dollars will be spent on the campaigns for and against Kavanaugh’s confirmation, reducing the process of “advice and consent” established in our Constitution to little more than grass political theater.


All of this says volumes about how influential the court has become in our politics and governing. And it also speaks to how much we have lost touch with the purpose of the judiciary under our Constitution and how best to ensure the court can achieve that purpose going forward. Judge Kavanaugh can help restore the purpose of the judiciary and will leave politics aside when making decisions, just as he has always done.


The judicial branch, as Alexander Hamilton wrote in The Federalist, should be considered the “least dangerous” to the rights of the people because it possesses neither the power of the purse nor the power of the sword. Surely, this is something of an understatement of the influence of the contemporary judiciary, which can and does indeed rule on issues relating to national defense and foreign policy (immigration comes to mind) and the government’s power to tax and spend (the Affordable Care Act). But Hamilton’s point is that the court can only assert its influence when confronted with a case or controversy that must be resolved. The judiciary cannot initiate the conversation. It can only attempt to bring it to some sort of conclusion, even if it might be only temporary.

In other words, it can be argued that under the Constitution, both the legislative and executive branches are authorized to “act,” while the judiciary is authorized to “think” and to “reason.” What should matter when the court issues its opinions is not so much who wins and who loses, but why. Article III of the Constitution establishes the judiciary as an “intellectual” institution in which the power of its decisions is determined by the quality of the reasoning behind those decisions. Picking winners and losers in Supreme Court cases almost completely ignores this and transforms the judiciary into just another political institution; something it was never designed to be. 

Moreover, it portrays justices and potential justices as nothing other than purely political actors, different only by degree from those who nominate them and those who vote to confirm or not confirm them. This process undermines the potential contribution the judiciary can make to the people’s understanding of self-government and the rule of law. Instead, we must be confident that a Justice will think and reason with an unbiased point of view, something that Kavanaugh has shown throughout his career.

There is a more pernicious outcome to all of this. It undermines the public’s confidence and trust in all our institutions of government.  To see and hear those engaged in the confirmation battles hurl invective at one another, assassinate or elevate a nominee’s character, play on the fears and hopes of everyday citizens, and cater to the baser instincts of popular politics undermines the nation’s character. It makes it more difficult for the judiciary to do its job and for the American people to understand what that job entails and how it helps to preserve the constitutional order we say we care so much about.               

The confirmation debate surrounding Judge Kavanaugh’s nomination gives us all, not only the Senate, an opportunity to get beyond the recent past and to elevate the discussion and national understanding of constitutional government in the United States.

In the end, that’s what the coming debate should be all about: Constitutional government in America and how Judge Kavanaugh can help restore it.

Eugene Hickok is a former professor of political science and law at Dickinson College and the Dickinson School of Law. He served in the Department of Justice under Attorney General Edwin Meese and worked on the confirmations of Justices Rehnquist and Scalia.