Immediately after President Donald Trump announced Brett Kavanaugh as his nominee to replace Justice Kennedy, I received a few texts asking for my opinion on the nominee. I’m confident my reply is 100% correct and also likely to be 100% unsatisfying to most people highly engaged with the process: I’ll let you know in five years. The truth is, no Supreme Court Justice pick can be properly evaluated until that person has been on the court for some time.
Kavanaugh, a Catholic, and former clerk to retiring Justice Kennedy has, as law professor and pundit Glenn Reynolds puts it, a “gold-plated resume.” With a twelve-year history on the esteemed D.C. Circuit Court of Appeals, a job as a white house lawyer before that, and two degrees from Yale – we can agree with that. The importance of that sterling background will be apparent in the nomination battle.
Finding a few straggling Senators to cross party lines would be much easier if his pedigree were less than stellar. Remember Harriet Meyers? That will not happen here. Reynolds, who approves of the pick, says “Kavanaugh will be a solid vote for constitutional fidelity and judicial restraint.”
Where He Sits
Only after confirmation to the lifetime appointment to a court with no higher authority, will we be able to really discern where the man is at jurisprudentially. As the New York Times puts it:
That’s thanks to the perversion of the Supreme Court confirmation process, which once provided the Senate and the public with useful information about a potential justice’s views on the Constitution, but which has, ever since the bitter battle over President Ronald Reagan’s failed nomination of Robert Bork in 1987, devolved into a second-rate Samuel Beckett play starring an earnest legal scholar who sits for days at a microphone and labors to sound thoughtful while saying almost nothing.
Combine that “perversion” with the elimination of the filibuster by Senate Democrats to push through Obama nominees, and we now have a process that yields little to chance. President’s will now only choose nominees who have been vetted exhaustively, and those nominees know not to reveal any information about what they think about important cases they are likely to decide.
The current calculations go like this – can the nominee make it through the hearing? That is, between the time their name is made public and the gavel falls on the Senate Judiciary Hearing over the confirmation, will some person, case, or story reveal the nominee is unfit, or could easily be manipulated to show they are? If not, then all they have to do is say nothing essentially, and if the President’s party has a majority in the Senate, they will be confirmed. This has been true for Justices Sotomayor, Kagan, Alito, Gorsuch, and Chief Justice Roberts himself. The smart money bet is for it to be true with respect to Judge Kavanaugh as well.
All About the Benjamins
Sadly, much of the inevitable back and forth over the nominee will not have much to do with him, the law, or the process, but will be about politics. And fundraising.
As President Trump named Judge Brett Kavanagh as his Supreme Court nominee, I received a vital communication from a national Democratic political action committee, letting me know:
Brett Kavanaugh is a guaranteed hard-right vote, who was pre-screened as such by conservative organizations before Trump ever began looking at names.” Also, that, “this can’t wait until tomorrow morning – and the best way to do it is by backing Democratic legislators who can stand up to Trump’s agenda in the states.”
Republicans too will use the process to fill their pockets by those who approve of the nominee. My state’s Republican party let me know right away that “[p]rogressives like George Soros have been planning to defame anyone that the President would nominate.” As it turns out, my $5 donation will be a welcome aid in fighting that battle.
Balance of Power
Hearing so much about the balance of power on the court, a person could be confused and think that there is a constitutional mandate that there be some balance on the court; like a Lebanese Constitutional requirement for a certain number of Muslims and Christians in government, mandating a certain percent Conservative or Liberal. You can scour Article 3 all day long for that, but I guarantee you will not find it. There is no such rule, nor a tradition or expectation – just a talking point.
Harvard Law Professor Ian Samuel said of Trump’s announcement, “The Senate will confirm anyone Trump picks off of his list. Anyone who tells you otherwise has newspapers to sell.” Just as sure as Democrats announced they would vote against Kavanaugh before his name had fully escaped Trump’s mouth, Senate Republicans would be hard-pressed not to vote for any even remotely qualified candidate, much less this one.