As a presidential candidate, Donald Trump vowed to nominate federal judges “in the mold of” Antonin Scalia, and he has lived up to his word. Neil Gorsuch was a superior pick to replace the late Justice Scalia in 2017. And the nomination of Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court is another.
Kavanaugh, 53, understands Washington better than most judges. After graduating from Yale and Yale Law and clerking for appeals court judges, he joined the office of Independent Counsel Ken Starr during the Clinton-Lewinsky investigation. He was one of the authors of the Starr Report—which, despite accusations to the contrary in 1998, was a fair, thorough, and nuanced work of analysis. Kavanaugh worked as an attorney for President George W. Bush and also as his White House staff secretary, one of the most demanding jobs in Washington.
Bush nominated Kavanaugh to the Court of Appeals, D.C. Circuit, in 2003. He wasn’t confirmed until 2006 thanks to the timeworn Democratic tactic of inventing reasons to object to sound Republicans. Senators Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.) accused Kavanaugh of having misled them over his role in the Bush administration’s post-9/11 detention policy. He hadn’t, but we expect to hear a great deal of recriminatory rhetoric on that score from Durbin and others in the coming weeks.
Kavanaugh resembles Scalia in two main senses: He is by all indications a textualist, meaning he interprets the law as it’s written rather than as its authors supposedly intended; and he is an originalist, meaning he interprets the text in light of what its words meant when it was enacted into law. Although Kavanaugh clerked for retiring Justice Anthony Kennedy, famous for drawing extratextual distinctions and inventing special models of interpretation, the younger judge has a long record of relying on the simple text of the law.
Senate Democrats are certain to find every turn of phrase in Kavanuagh’s extensive oeuvre that can reasonably—and unreasonably—be presented in an unfavorable light. Former Democratic majority leader Harry Reid having broken the tradition of allowing filibusters on judicial nominees, Democrats cannot alone stop Kavanaugh’s confirmation. But the ferocity of their rhetoric will intensify in proportion to the powerlessness of their own position. We shudder to think what tendentious exegeses and slanderous charges they’ll produce when the hearings begin.
Democrats learned something terrible from the fight over Robert Bork in 1987. Ted Kennedy and his ally Joe Biden defeated the nomination of a decent man and a distinguished jurist by the simple expedient of calling him a racist and a monster. As a reward they ended up with an intermittently amenable alternative: Anthony Kennedy. In the intervening three decades, the two Senate caucuses have become more and more prone to unreasonable opposition. Partly this is a result of the federal judiciary’s arrogation of powers not intended for it, and partly it’s a result of political polarization across the nation. In any case, by 2009, only 9 of 40 Republican senators voted to confirm Sonia Sotomayor to the High Court. A year later, only 5 of those 40 voted to confirm Solicitor General Elena Kagan—this despite the fact that Kagan was vastly superior to Sotomayor as a thinker and a scholar.
But at least some Republicans could bring themselves to vote for Barack Obama’s nominees. One of those, Lindsey Graham of South Carolina, the reddest of red states, took ferocious criticism for his votes. Last year, only 3 of 49 Democrats could bring themselves to vote for the unquestionably qualified and thoughtful Neil Gorsuch, and not one of them was from a blue state.
In the contest of sheer unreasonable antipathy, Senate Democrats win decisively. Pennsylvania’s Bob Casey announced his opposition to the nominee before President Trump even made his choice. One assumes such Democrats are only reflecting the irrational hatred of the interest groups that support them: The Women’s March, for instance, mistakenly sent out a press release after the announcement of Brett Kavanaugh reading, “In response to Donald Trump’s nomination of XX to the Supreme Court.” Cory Booker of New Jersey also suggested that it didn’t matter who the nominee was: “I’m well on the record with saying that, before it was even Kavanaugh, that this is a very problematic constitutional moment for this country.”
Academic qualifications, professional accomplishments, judicial philosophy, and personal character matter not at all in the face of crass political concerns. “Brett Kavanaugh has proven he cannot be trusted to defend a woman’s right to choose,” Rep. Nancy Pelosi (D-Calif.) announced, despite the fact that she won’t be voting on the nomination. “Americans don’t want Trump and Brett Kavanaugh’s extreme anti-choice agenda,” tweeted Rep. Sheila Jackson Lee (D-Tex.). Massachusetts senator Elizabeth Warren, similarly, announced that “there’s a lot to dislike about Brett Kavanaugh’s record—including his hostility toward consumers.” As everyone knows, “hostility toward consumers” is a thing that should never be said about a judge.
Do Democrats not understand that a judge’s duty is not to impose his political preference but to interpret the law, whether or not he happens to like the law? The better question is: Do they care?
Neither Judge Kavanaugh’s words nor his achievements nor his character will give any fair-minded lawmaker, Democrat or Republican, reason to conclude that he is anything but a first-rate legal mind and a conspicuously qualified nominee.
