Brett Kavanaugh will bring middle principles to our polarized nation

Anna Moneymaker

There is plenty of controversy over the nomination of Brett Kavanaugh to the Supreme Court, but almost none of it is about him. Even detractors appear to have abandoned any claim that he lacks the intellect, experience, or temperament to be an outstanding justice. Critics have combed through 12 years of his opinions on the District of Columbia Circuit, second only to the Supreme Court in the high profile cases it decides, without coming across a single opinion that is half baked or unreasonable. Not that there are no complaints about results, as no judge decides every case the way everyone wants. That would be impossible.

But the opinions provide little or no fodder for a serious attack on Kavanaugh’s professional performance. Nor has his personal life turned up any attackable nuggets. He appears to be happily married to a woman with a successful career as city manager of a liberal community. He is praised by his female law clerks for his support and mentorship. He does volunteer work for the poor. He likes baseball. There will be no repeat of the scurrilous Clarence Thomas hearings.

{mosads}In ordinary times, Kavanaugh would be widely praised on all sides, and confirmed by the overwhelming supermajorities that Ruth Bader Ginsburg and Stephen Breyer received as recently as the 1990s, or at least the comfortable margins of John Roberts, Samuel Alito, Sonia Sotomayor, or Elena Kagan. This is unlikely. Neil Gorsuch, with a similarly unblemished record of excellence, won with the support of only three Democrats. Kavanaugh will be lucky to do as well.

But this has absolutely nothing to do with Kavanaugh. He might as well stay home from the hearings, which are not about him. In nominating Kavanaugh, President Trump did a distinctly un-Trumpian thing. Unlike the populist, anti-establishment, norm shattering, often extreme Trump, Kavanaugh is a mainstream, conventional, cautious, credentialed product of the center-right establishment. True blue Trump supporters were disappointed, much like true blue left progressives were disappointed when President Obama nominated Kagan and Merrick Garland.

Temperamentally and philosophically, Kavanaugh more closely resembles the moderate John Roberts than the fire-breathing monster some of his detractors are attempting to portray. It would not surprise me, although I could be overly optimistic here, that with Kavanaugh on the Supreme Court and Justices Breyer and Kagan showing signs of willingness to break with their more leftward brethren or sistren, the new Supreme Court could have a serious principled middle for the first time in decades. That would be therapeutic for our obsessively polarized country.

Why, then, will there be a polarized vote on Kavanaugh? There are three reasons: ideology, partisanship, and Trump. The usual left issue advocacy groups have predictably lined up against Kavanaugh, with all the predictable exaggerations about his record and the same tired chicken little prognostications that they have made about every Republican Supreme Court nominee since Robert Bork. They seem not to have noticed that conservative jurists tend to be, well, conservative. They do not like abrupt change, which means they tend to prop up decisions that they would not have voted for in the first instance.

A word of cynicism may be in order. Advocacy groups, both of the right and of the left, make their money by exciting (a polite word for scaring) their constituents. Neither side has a great track record for fairness or accuracy. A rule of thumb is never trust the judgment of a right-leaning advocacy group or pundit who has never supported a Democratic nominee, or of a left-leaning advocacy group or pundit who has never supported a Republican nominee. Unfortunately, the advocacy groups have gained in influence every cycle for the past 30 years. It almost makes me nostalgic for the innocent time of the Bork nomination, when his opponents at least professed to think it wrong to oppose a nominee on purely ideological grounds unless his views were “outside the mainstream.” On that standard, Kavanaugh would get 100 votes.

Partisanship among lawmakers also is increasingly blatant. Not long ago, judicial nominees were confirmed unless there were something specially objectionable about them. No more. The new normal is that the opposing party will line up, lock step, against any nominee of a president of the opposite party. The time is coming when no judge can be confirmed if the Senate is in opposite party hands than the presidency, which is itself an increasingly common occurrence. Senators today live in fear of the extreme wings of their party and cannot do the responsible thing even when they know it is for the good of the country.

Some of the hostility of Democrats to any nomination of a Republican president, no matter how qualified, is due to backlash against the Republican Senate’s refusal to consider the nomination of Judge Garland, an exemplary nominee, to the Supreme Court in 2016. Of course, Republicans thought their actions toward Garland were a justifiable backlash to Democratic refusals to consider Republican judicial nominees in election years in the past. Whatever the merits of those arguments, they should not be allowed to poison the well of Supreme Court nominations forever, or the nation will pay a stiff price.

Then there is Donald Trump. Many Democrats tell themselves that their disregard for old norms about judicial nominations is a reaction to his unique presidency. Some just cannot believe a man of his character was elected president and will do just about anything to deny him the prerogatives of the office and if possible to remove him. Some sincerely believe that impeachment or criminal prosecution is in the offing, and worry that Kavanaugh will protect Trump from the just arm of the law.

Senators cannot properly ask Kavanaugh how he would vote on hypothetical matters involving Trump, and if they do ask, he should follow precedent and refuse to answer. But they can ask him whether the White House team who selected him asked any questions regarding potential legal issues involving the president, and they can insist that he commit himself to judge any potential legal issues with an open and nonpartisan mind. My guess is that Kavanaugh will have no difficulty answering those questions and providing those assurances. Richard Nixon’s nominees to the Supreme Court did not support him in U.S. v. Nixon, and Bill Clinton’s appointees did not support him in Clinton v. Jones. There is nothing in Kavanaugh’s record of public service that suggests in the least that he will carry water for Trump, should it come to that.

In the meantime, there is an issue of principle at stake. Whatever any of us might think of Trump, he was elected president by a vote of the people in accordance with constitutional processes. Unless and until actual charges are brought and proven against him, the people of the United States are entitled to the presidency they voted for. In my opinion, it would be highly improper for any senator to vote against an exemplary nominee to the Supreme Court in the anticipation that the president may at some time in the future be impeached, charged, or convicted of a crime. Unless and until that happens, Trump is entitled to nominate a new justice to the Supreme Court, and we should all be pleased and relieved that the nominee is a person of the character and ability of Brett Kavanaugh.

Michael McConnell is a professor at Stanford Law School. He served as a judge on the United States Court of Appeals for the Tenth Circuit alongside Neil Gorsuch and clerked for Supreme Court Justice William Brennan.

Tags Bill Clinton Congress Donald Trump Merrick Garland Politics Supreme Court

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