The stakes for a Supreme Court nomination have not been higher than they are for Judge Brett Kavanaugh in a generation or more. He would replace Justice Anthony Kennedy, the pivotal swing vote on issues from abortion to marriage equality to Obamacare. If he is confirmed, he could determine the course of the high court for years to come. Yet the quality of the vetting he has received in his Senate confirmation hearings this week is the worst we have seen. Mr. Kavanaugh elevated the polished yet non-committal answers his immediate predecessors have offered to questions about their views to new levels of meaninglessness. Far from merely declining to state how he might rule on issues that could come before the court, he was evasive about even opining on things he himself had written.
The outcome, though is a foregone conclusion. Because Senate Majority Leader Mitch McConnell exercised the "nuclear option" to eliminate filibusters for Supreme Court nominees, Mr. Kavanaugh had to do no more than keep a couple of pro-choice Republicans on board to ensure his confirmation. The sturm und drang from Democrats this week — including raucous protests, attempts to shut the hearings down and even Sen. Cory Booker’s release of “committee confidential” documents under threat of possible expulsion from the Senate — was mere electoral politics, an attempt to rile up the base and/or make Republicans look bad in advance of November’s elections. None of the Democrats expected to derail the nomination.
Should Judge Kavanaugh be confirmed to the Supreme Court? He is undeniably qualified, if far more conservative than someone we would pick, but that’s what happens when a conservative is president. As to whether his judicial philosophy is so far outside the norm to warrant rejection, we simply can’t tell. When he was nominated, we had several questions about his record on issues including what he considers to be an “undue burden” to the right to an abortion as guaranteed in Roe v. Wade and Planned Parenthood v. Casey; what limits he recognizes to the Second Amendment; what his views are on the constitutionality of an investigation of a sitting president, and in particular, whether one might be subpoenaed; how he balances religious liberty and the right to equal protection; and what limits he sees on executive power. We still have those questions. Judge Kavanaugh avoided saying anything that would disqualify him, and he also avoided saying anything to put our minds at ease that he is broadly within the judicial mainstream.
We argued against confirmation of Justice Samuel Alito a decade ago on the grounds that he displayed in his confirmation hearings a willingness to ignore precedent in furtherance of his agenda. However, we did not object to Justice Gorsuch’s nomination to the Supreme Court, nor that of Chief Justice John Roberts, believing that both, while conservative, were well qualified. We could probably say the same of Judge Kavanaugh. Nonetheless, we believe senators should vote against his confirmation — not because of the man but because of the process.
It’s not just that Democrats failed to get straight answers to their questions. It’s that Republicans showed so little curiosity, even over issues (like Roe v. Wade) that they care deeply about. The Senate has abdicated its role to provide advice and consent in favor of a numbers game that deepens the sense that the Supreme Court is a political institution and that the Congress is subordinate to the president whenever he is of the same party as its majority. We fully expect most Democrats to vote against Mr. Kavanaugh, but Republican Senators, if they were thinking of the viability of their institution (not to mention what will happen one day when there’s a Democratic president and Democratic Senate), would do the same.
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