Confirm Kavanaugh (if the Allegations are False)

When the news broke that President Trump nominated Judge Brett Kavanaugh to fill Justice Kennedy’s seat, I had some initial concerns. In particular, I was concerned about his role in the Ken Starr investigation and his role as a member of President Bush’s legal teams during the 2000 election and in the White House. It seemed to me that one does not seek out these sorts of opportunities unless one wants to serve as a political operative. Criticisms of Judge Kavanaugh along these lines resonated loudly with me as he seemed poised to be a senator in a judge’s robe.  

However, exploring Judge Kavanaugh’s written record put my concerns to rest. In particular, it was his record as a judge that alleviated my concerns about his being a politician disguised as a judge. He has consistently applied an originalist and textualist approach to his interpretation of law and has applied precedent in a consistent manner. A judge can hardly be denounced for being an originalist or a textualist, even if those interpretive tools are different from the ones an observer might otherwise prefer. These approaches are unquestionably within the mainstream of contemporary jurisprudence and their use should not be seen as a legitimate reason to withhold confirmation. From any objective criteria that one would look for in a Supreme Court nominee, Judge Kavanaugh would be declared well qualified. He graduated from Yale undergrad and law school. He clerked for a Supreme Court justice and served as a federal appellate judge for over a decade. His extensive judicial record shows us already what type of judge he will be. He was unanimously rated “Well Qualified”—the highest rating available—by the American Bar Association, not exactly a bastion of right-wing thought. At a minimum, he is a competent jurist who has the intellectual ability to carry out the role of a Supreme Court justice.  

Similarly, the particular conclusions a judge draws after deploying his or her mode of jurisprudential analysis should not concern us either. Much of the controversy surrounding Judge Kavanaugh’s nomination has centered around whether he would vote to reach certain policy outcomes. These sorts of ideological litmus tests should be eradicated from the nomination and confirmation process entirely. It is one thing if a judge’s analysis does not support his or her conclusion. It is an entirely different thing to make a decision on a judge based on what that conclusions that judge is expected to reach. One can disagree with the conclusions a judge will reach and still think that person is qualified to hold his or her office.  

It strikes me that the controversies surrounding Judge Kavanaugh’s nomination to the Supreme Court are a microcosm of the broader issues facing our politics and our culture more generally. In some ways, the Court has become the most powerful institution in our government, and as a result, choosing the individuals who have the privilege to serve in that institution has become a political game of progressively higher stakes. Activists have increasingly changed their tactics from lobbying legislatures to funding lawsuits to challenge or re-define laws they disagree with. And because courts render their decisions from behind a bench and in robes, beyond the rough and tumble of electoral politics, their decisions are gilded with a veneer of inexorable truth. In other words, when the Court speaks, many people look at it not as if it is merely deciding a case before it, but rather as if it is clarifying right and wrong itself. Unsurprisingly, polarizing issues with morally contentious perspectives (abortion, healthcare, gun laws, etc.) are front and center in the debate over whether to confirm a judge to the highest court in the nation.  

Broadly speaking, we need to turn the temperature down in these hearings so that we can better ensure that the Senate is able to provide sound advice and give informed consent to the nominees before it. This has proven to be especially true with Judge Kavanaugh. Hearings should be about whether a nominee has the intellectual capacity and character to serve as a public official. We should seek to determine whether a nominee has the temperament to be an impartial judge and whether the nominee’s record reflects consistency in his or her approach to the law. Judge Kavanaugh checks all of these boxes. However, the antics we witnessed during his hearings, including hysterical episodes of audience members disrupting the hearings to protest, Sen. Cory Booker’s posturing as “Spartacus,” or Sen. Kamala Harris’s blatant mischaracterization of Judge Kavanaugh’s views,[1] have only served to inhibit the Senate’s ability to credibly carry out this role.  

Unfortunately, the choice of some Senators to exchange credibility for political capital has become more significant given the recent allegations levied against Judge Kavanaugh. Senator Leahy has alleged that Judge Kavanaugh misled the Senate during his hearings for his current position on the D.C. Circuit and then doubled down on these statements during his more recent hearings.[2] Also, a serious claim of sexual misconduct began to trickle out last week, culminating in the accuser, Dr. Christine Blasey Ford, publishing her story in the Washington Post last Sunday.[3] Each of these allegations should be investigated, but the Senate must do so in a way that searches for truth rather than political points. Sadly, the theatrics of the earlier hearings may have vicariously tainted those stepping forward to accuse Judge Kavanaugh of real misconduct. Democrats have been crying wolf for a long time with precious little to support those accusations. Now that there may in fact be a wolf, it is uncertain whether there is anybody to hear the warning cry. Should an honest investigation determine either of these allegations to be credible, I will be the first to admit that Judge Kavanaugh does not possess the integrity to serve on the Supreme Court. However, as of this moment I do not think we are there yet. Monday’s hearing with Judge Kavanaugh and Dr. Ford should be clarifying. 

At the end of the day, an ideal world would have obviated the need for the absurdity surrounding Judge Kavanaugh’s nomination. There is little question he has the ability do the job well. His resume is littered with sterling credentials and his tenure as a judge has shown him to be thoughtful, consistent, and competent. His record assures me that he will not act like a politician while on the bench. Viewed in light of his judicial record, Judge Kavanaugh is exceptionally well qualified for the position to which he is nominated. While we can be free to dispute whether Judge Kavanaugh reaches the right conclusions should he eventually be confirmed, anticipating those disagreements isn’t a reason not confirm him. The only question Judge Kavanaugh’s hearings exposed is whether he has the character to be a judge. Unfortunately, the Senate may lack individuals with the unimpeachable character to credibly make that determination. Alas, that is our system, but I have hope that the honest truth will emerge soon. Should the accusations levied against Judge Kavanaugh turn out to be untrue, the only other arguments raised against confirmation come from a concern over ideology. Judge Kavanaugh has shown himself to not be an ideologue but instead a judge. His record demands he be confirmed as such.