Give Kavanaugh a Chance
Kudos to the Democratic senators who are keeping an open mind
Several Democratic senators already have said that they will oppose Judge Brett Kavanaugh’s nomination to the Supreme Court seat that Justice Anthony Kennedy is vacating (here are statements from Richard Blumenthal, Kirsten Gillibrand, Kamala Harris, Bernie Sanders, Chuck Schumer, and Ron Wyden). This strikes me as a grave mistake — normatively and strategically. Kudos to Democrats — including Sherrod Brown, Joe Donnelly, Heidi Heitkamp, and Joe Manchin — who have resisted the rush to judgment.
Brett Kavanaugh is a conservative. That should not be disqualifying. Republican presidents generally will nominate conservatives to the Court, and Democratic presidents generally will nominate liberals. Senators of the opposite party should insist upon well-qualified nominees who fall within the mainstream of American legal thought — not extreme ideologues. Judge Kavanaugh is well qualified by any measure, and his views are much closer to the center than those of many of his former and current Republican-appointed colleagues on the D.C. Circuit.
By this standard, of course, the Senate ought to have confirmed Merrick Garland in 2016. But (also of course) two wrongs do not make a right. Perhaps Senate Majority Leader Mitch McConnell’s refusal to allow a vote on Garland gave Democratic senators a reason to oppose Neil Gorsuch’s nomination to the seat that Garland should have filled. But that is not the seat that Kavanaugh will be filling. The Kennedy vacancy is Trump’s to fill because we lost an election — square if not fair — maybe because of James Comey but mostly because we chose a candidate who repelled a large portion of the electorate. We can’t blame Mitch McConnell for that.
Judge Kavanaugh, moreover, is about the best that we liberals could hope for. Yes, he is a conservative, but as far as conservatives go, he is a judicial minimalist. Given a chance in 2011 to say that the Affordable Care Act was unconstitutional, Judge Kavanaugh instead said that the challenge to the ACA should be resolved on Anti-Injunction Act grounds (incidentally, he was right). Given a chance to say, as two of his more conservative colleagues would have said, that country-of-origin labeling requirements violate meat producers’ free-speech rights, he instead carved out a narrow rationale for upholding those regulations. He will win no awards from the the NRDC or the Sierra Club, but he is not a knee-jerk opponent of all environmental protections. His dissent in the abortion case Garza v. Hargan — though I disagree with it — did not question the proposition that an immigrant minor in federal custody has a constitutional right to an abortion.
Democratic senators can — and no doubt will — ask Judge Kavanaugh whether he would vote to overturn Roe v. Wade. But Judge Kavanaugh would be justified in refusing to answer that question. Now-Justice Elena Kagan refused to answer that question in her confirmation hearing, as did several of her Democratic-appointed predecessors. Requiring Judge Kavanaugh to answer that question as a condition for an “aye” vote on his confirmation would leave Democratic senators vulnerable to charges of hypocrisy.
And strategically, what comes of our opposition to Judge Kavanaugh’s confirmation? Will it mobilize the base? Sway undecided voters? Of all the issues that Democrats have to run on in 2018, is this really our strongest one? Let’s run against the Trump administration’s inhumane immigration policies and against congressional Republicans’ refusal to protect Dreamers. Let’s run against the Trump administration’s efforts to take health care away from millions of Americans and against congressional Republicans’ aiding and abetting of those efforts. Let’s run against a tax law that puts multinational corporations ahead of working families and irresponsibly balloons the national debt. Let’s make Stephen Miller, Scott Pruitt, and Jim Jordan our political piñatas. But Brett Kavanaugh? Really? The better move — strategically as well as normatively — would be for Democrats to use the Kavanaugh nomination to show voters what responsible legislating looks like. And that means giving Judge Kavanaugh a fair hearing — potentially even voting to confirm him — rather than declaring our opposition within minutes of his nomination.
