Now that we know a bit more about the Federalist Society’s nominee, I guess it’s time to talk about the Supreme Court.
In no particular order, and for what they are worth, here are some observations about the Court, the process and this nominee.
The Supreme Court was not intended to be a “democratic” (small d) entity; quite the contrary. The judicial branch is supposed to be a nonpartisan constraint on majoritarian passions when those passions threaten Constitutional principles and the rule of law. That said, its judges are supposed to be broadly representative of the (best of) our citizenry. This nominee is the choice of a President who lost the popular vote by a margin of nearly three million, and whose approval ratings have rarely exceeded 40%; if he is confirmed, it will be with the votes of Senators from states with (an arguably unrepresentative) 45% of the population.
As one legal scholar has commented (link unavailable),
I think we’d all agree that the nation has been fairly evenly divided, all things considered, in presidential and congressional elections over the past 50 years. Yet there has been a Republican-appointed majority of the Court for the past 47 years, and that’s likely to continue for at least another 20-30, if not more. It doesn’t much matter what label we use to describe our system, “democracy” or otherwise. The salient point is that it is very possible that for my entire adult life–even if I am fortunate to live to a ripe old age–the Justices will not have been representative of the nation, and will have been systematically skewed in one direction for the entire period.
Over at Balkinization, Mark Graber points to a conflict between this nominee’s actual–highly partisan– jurisprudence and the “cliches” he and Trump use to describe his judicial philosophy:
Donald Trump and Brett Kavanaugh offered the American people two clichés when describing how Supreme Court justices should decide cases. The first is that they must interpret the Constitution as written. The second is that they should use common sense. One problem is that in many important cases the two conflict. The more serious problem is that when the two conflict, Kavanaugh always selects the option that promotes Republican policies and politics.
In 2012, Stephen Pearlstein wrote a column about one of Kavanaugh’s decisions, a decision invalidating EPA regulations that had been the subject of exhaustive research, numerous hearings, and years of negotiations with industry and environmental groups. (I strongly encourage you to click through and read the whole column.) Reading Kavanaugh’s decision, Pearlstein says
You’d have no idea that, in earlier decisions, the same court had found it a reasonable formula resulting in reasonable compliance costs, but sent an earlier version back to be reworked because it didn’t make the air clean enough.
Instead, what you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.
You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.
You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.
In other words, an arrogant and activist judge ruling on the basis of his personal political ideology.
Kavanaugh’s approach to gun laws also follows partisan predilections justified as respect for history and tradition. Because “semiautomatic rifles have not traditionally been banned and are in common use,” he has written,” they are protected under the Second Amendment.”
What happened to that professed commitment to common sense?
Perhaps the most comprehensive descriptions of Kavanaugh’s record–and reasons to oppose his elevation to the Court– are contained in a letter signed by hundreds of alumni of Yale and its law school. I strongly encourage reading that letter in its entirety, because it details numerous specific positions the judge has embraced (including his opposition to mandating coverage of pre-existing conditions by health insurance companies, and a truly bizarre opinion that Net Neutrality rules run afoul of the First Amendment). As the letter argues:
Support for Judge Kavanaugh is not apolitical. It is a political choice about the meaning of the constitution and our vision of democracy, a choice with real consequences for real people. Without a doubt, Judge Kavanaugh is a threat to the most vulnerable.
Much of the opposition to this appointment centers on Kavanaugh’s likely approach to Roe v. Wade. But Roe–which has already been “nibbled” to death in many states–is just the tip of a very large iceberg. Kavanaugh has consistently elevated religious doctrine over personal autonomy, and has disputed the existence of a wall of separation between church and state.
In the age of Trump, however, a position taken by Kavanaugh that I find even more chilling is his current view that Presidents should be above the law, at least while in office. As the Yale alumni wrote,
Judge Kavanaugh would also act as a rubber stamp for President Trump’s fraud and abuse. Despite working with independent counsel Ken Starr to prosecute Bill Clinton, Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions. He has also noted that “a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.” This reversal does not reflect high-minded consideration but rather naked partisanship. At a time when the President and his associates are under investigation for various serious crimes, including colluding with the Russian government and obstructing justice, Judge Kavanaugh’s extreme deference to the Executive poses a direct threat to our democracy.
Does Judge Kavanaugh have the credentials and intellect to serve on the Court? Certainly.
Does he have the intellectual humility and “spirit of liberty” that Learned Hand once defined as “the spirit which is not too sure that it is right… the spirit which seeks to understand the minds of other men and women… the spirit which weighs their interest alongside its own without bias”?
Not even close.