George E. Rudebusch ’20
Editor’s Note: Mr. Rudebusch submitted his column prior to the allegations of sexual assault against Judge Kavanaugh that emerged at the end of last week. For that reason, his column deals only with Kavanaugh’s judicial temperament and ideology.
The confirmation process of Brett Kavanaugh, Judge of the Court of Appeals for the D.C. Circuit, represents the latest Republican effort to prioritize party over nation. That is nothing new. But what is new—and what we have learned over the past few weeks—is just how eagerly Republicans are willing to accept a bargain that entrenches their own power at the cost of conservatism, democratic norms, and our national politics.
Democratic legitimacy hinges on deliberation. It springs forth from fair and open processes. This explains why the Constitution requires the advice and consent of the Senate to confirm a justice for a life appointment to the Supreme Court. For decades, Senate Republicans have seemingly understood this, even defending the confirmation process from attempts to change it.
And yet, since the election of President Donald J. Trump, the Republican Party has embraced with open arms fundamental changes to how the Senate confirms nominees to our highest court. During the confirmation of then-Judge Neil Gorsuch, Republicans invoked the so-called nuclear option, which lowered the threshold for closing Senate debate on a Supreme Court nominee from sixty votes to a simple majority. In doing so, Republicans opted to relax the decades-long cloture rule instead of using traditional democratic processes to confirm their candidate of choice.
As the Senate proceeds with the confirmation process of Judge Kavanaugh, Republicans continue to flout democratic norms. They have withheld hundreds of thousands of Kavanaugh documents from their Democratic colleagues in the Senate. And they are hellbent on steamrolling the circuit judge through the confirmation process before the midterm elections this November. How is the Senate to advise and consent on Kavanaugh’s nomination with an incomplete documentary record and without sufficient time for due process? And what about waiting until after the midterms in order to “give the people a voice in the filling of this vacancy?” Mitch McConnell, Majority Leader of the Senate, made this very argument in 2016 during the doomed confirmation of Merrick Garland, Chief Judge of the D.C. Circuit Court of Appeals. Does it apply with any less force today?
For a party that extols the virtues of responsibility, Republicans have been anything but since taking power in 2017. Over the past two years, Republicans have furthered the deep partisan divide in America. They have fortified their unpopular policy positions by degrading our democratic institutions.
And if they should succeed in appointing Judge Kavanaugh to the Supreme Court, we could experience a profound reworking of our society. In his confirmation hearings, Judge Kavanaugh has expressed cagey, contradictory, and misleading testimony about his views on reproductive rights and whether Roe v. Wade is settled law.
He also has revealed that he perjured himself in 2006 when he testified for nomination of Judge William H. Pryor, Jr. to the Eleventh Circuit. Evidence of perjury for any judicial nominee should raise serious issues during the confirmation process. But in these times when the line between truth and lie has been obscured, such evidence should automatically disqualify Judge Kavanaugh—and arguably provides grounds for his impeachment from the D.C. Circuit.
Perhaps most concerning, however, is Judge Kavanaugh’s beliefs in expansive executive authority. His extensive writings on the subject raise the specter that Judge Kavanaugh will shield President Trump from criminal and civil lawsuits that could stem from Robert Mueller’s investigation. His views on Presidential immunity have even caused some to question whether President Trump nominated Judge Kavanaugh specifically to insulate himself from the special counsel’s eventual findings. Chuck Schumer, Senate Minority Leader, arguably said it best when he rhetorically asked, “Is it any wonder that President Trump chose Kavanaugh from the list of 25 [candidates] when we know he’s obsessed with this investigation?”
For these reasons, and despite his qualifications, Judge Kavanaugh should not be confirmed to replace his former boss, Anthony Kennedy, as an Associate Justice on the United States Supreme Court. Judge Kavanaugh’s nomination has only further inflamed partisan tensions and adds to the mounting evidence that the Republican party is unfit to control all three branches of government.
Better is possible. Rather than exploiting Kennedy’s vacancy for its own partisan ends, the Republican party should seize it as an opportunity to help heal our ailing body politic. Toward that end, Republican Senators should join their Democratic colleagues and block the confirmation of Judge Kavanaugh. And President Trump should heed Senator Schumer’s advice and nominate Judge Garland to replace Kennedy. Doing so would not only replace a moderate justice with a moderate circuit judge. It would also bridge the partisan gap between Democrats and Republicans.
Indeed, nominating Judge Garland to the Supreme Court is precisely the olive branch that our nation needs. It would help President Trump to appear reasonable. It would help the Republican party make the case that it can effectively govern. And it would help put reorient our politics in a more bipartisan direction, where the national interest is put before the party.
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ger3aj@virginia.edu