The Confirmation of Justice Kavanaugh

I think it was necessary for the good of the country that Justice Kavanaugh be confirmed. It was necessary not because he is the only person fit for the seat on the Court, or even necessarily the best available. It was necessary in order to defeat the opposition.

Those who opposed him did so because they were afraid of what positions he would take on certain cases that may come before the Court. In my opinion, it is wrong for the Senate to try to tip the scales of justice, to assure a certain outcome of a case yet to be litigated. Their job is to see to it that the nominee is qualified to serve on the Court. In that regard, before the hearings began, the American Bar Association gave him their highest rating.

It is true that both parties have recently opposed nominees on the grounds of overall philosophy — originalist or expansionist — but focusing on specific issues as a basis for opposing a nomination violates our constitutional separation of powers. It is senators attempting to decide cases. Yet that is what has happened here, as well as in some earlier hearings.


Senator Ben Sasse gave an insightful speech on how the nomination process has become so politicized. He sees it as stemming in considerable measure from the Court becoming politicized, which in turn is the result of Congress's passing laws that are unclear. Whether better legislative practice is the solution, it is clear that there are cases in which legislatures have declined to pass legislation some people wanted, and people brought a case claiming that the Constitution compelled the result they desired, and the Court agreed — e.g. abortion, same-sex marriage. This in turn, creates a situation where one side in the debate hopes that the Court will reverse its decision and the other side fears reversal. There can also be questions —e.g., legislative apportionment — where one side hopes for a change in law by judicial means and the other opposes it.

When Senators come to see it as their right to determine the outcome of cases they consider important, they also tend to see it as legitimate to use all tactics at their disposal to defeat nominees they consider a threat. Interest groups who agree with them also use all tactics at their disposal. This includes distortion of the nominee's record, personal vilification based on those distortions, and apocalyptic speculation about the consequences of the nominee's being confirmed.. (Mischaracterization of decisions was Kennedy's standard tactic against Bork.) Having misrepresented the nominee, they then find it easy to incite campaigns — letter-writing, e-mails, telephone calls, angry demonstrations, face-to-face physical intimidation, screaming from the Senate Gallery.


And so it happened that Democrats and interest groups were opposing the nominee before he had been selected. No nominee would be acceptable to them, regardless of qualifications, and they used any weapon that came to hand. Finally when it was clear that their tactics were not working, someone betrayed Dr. Ford and made her their weapon (seemingly) of last resort. If Dr. Ford's allegation could have been substantiated, Senators would have needed to decide whether an attempted rape by a high schooler countervailed an adult record of distinguished public service. But, as it was, there was no substantiation beyond Dr. Ford's own testimony, and in the estimation of 51 Senators, that was insufficient to conclude that Judge Kavanaugh was unfit to serve on the Court. The argument was raised and continues to be raised, that the confirmation sends the wrong message to women, namely, that their testimony is disregarded. That is clearly false on its face. Dr. Ford's testimony was respectfully heard and considered, to the extent of reopening the FBI investigation. More broadly, this was not a decision about women, it was about one man. To try to make it about all women, or all victims of assault, is a politically motivated misrepresentation of the case

Under those circumstances it would have been wrong to let the tactics of the opposition succeed in this case. It would also be bad because of the encouragement it would give them to continue to use these tactics.

What we ultimately need is for both sides to return to the role of assessing a nominee's qualifications based on the quality of his/her work, not how they hope/fear the nominee will decide cases that may come before the court. For now, it is essential that Republicans continue to control the Senate until Democrats agree to abide by that standard. What about Republicans agreeing to it? I think enough already do for it to be not a problem in the overall scheme of things. I'd suggest that if the nomination of Merrick Garland had been permitted to come to the floor of the Senate, a number of Republicans would have recognized his fitness to serve, and he'd have been confirmed. The only way Mitch McConnell, taking the politicized approach, could prevent confirmation was to keep the nomination from ever coming up.

I want to see originalists on the Court, but if a president nominates someone qualified who holds a different judicial philosophy, I'll say, "Dang!" and move on. I might write an e-mail to my Senators, but I won't demonstrate, sit in, shout, or engage in other disruptive behavior —  even if some organization encourages me to. And I'll continue to try to find qualified candidates for president who promise to appoint originalists to the courts.