In the past few weeks, many conservative voices have spoken in support of President Trump’s Supreme Court nominee, Judge Brett Kavanaugh. But so have some liberal lawyers, including some of our colleagues at Yale Law School. Why would left-leaning attorneys lend their authority to a judge who has an unmistakable record of hostility to core liberal causes, from abortion rights to voting rights, from environmental regulations to restraints on presidential power?
In celebrating Kavanaugh, liberals may be acting out nostalgia for a long-gone bipartisan appointment process. They may be failing to admit the importance of values to judging, or they may be misreading Kavanaugh’s record. Perhaps they think he is the best nominee they can hope for, or that his personal virtue recommends his confirmation. Then again, maybe they are simply seeking influence. None of these are creditable reasons: There is no liberal case for Kavanaugh.
Since the failed nomination of Robert Bork in 1987, the confirmation process for judicial appointments has become intensely partisan. Nominees for federal judgeships have been far less likely to be confirmed, particularly when the White House and the Senate are controlled by opposing political parties. In 2016, Sen. Mitch McConnell obliterated any remaining commitment to bipartisan support for “qualified nominees” — those whose legal resumes are stellar no matter their ideological notions — when he refused even to hold hearings on President Obama’s Supreme Court nominee Merrick Garland. McConnell and other Republicans opposed him because they wished to protect the rightward tilt of the Supreme Court, and their gambit has paid off under Trump. Liberals alone cannot resurrect a commitment to bipartisanship. In Kavanaugh’s case, such an effort also means soft-pedaling the record of a far-right nominee.
Even nice and smart people can have values that are radically out of step with the American public.
During the confirmation hearings, many will make a show of saying that judges are umpires, calling balls and strikes against clear legal standards. But judging — especially at the Supreme Court — requires interpretation. What does “equal protection of the laws” mean? Do women have rights to constitutional equality or autonomy, and if so does that imply the right to abortion? Does the “right to bear arms” apply to assault weapons?
Nothing in the constitutional text or our history definitively answers these questions or even tells judges how to answer them. That is why fights over nominations to the Supreme Court are always fights over conflicting substantive visions of the Constitution and, ultimately, the country’s future.
Given what we know of Kavanaugh’s constitutional vision, and his judicial record, liberals should not support his appointment. As many commentators have argued, Kavanaugh has extreme views on matters ranging from gun rights to abortion to presidential power to the role of money in politics.
Those views, as well as his attitude toward precedent, were on full display in Garza vs. Hargen, the case of a 17-year-old girl in federal immigration detention who wanted an abortion to which she was entitled under state law. Existing doctrine says that the government may not impose an “undue burden” on a woman’s access to abortion. Against the views of six members of his court, who prevailed, Kavanaugh argued that the government’s refusal to allow the young woman to leave the custody of immigration detention to obtain a legal abortion imposed no such burden.
Even with Republicans in power, liberals may be able to do better than Kavanaugh. The nomination is on a knife’s edge in the Senate in terms of votes, and centrist Republicans who support Roe vs. Wade or constraints on executive power should oppose this nominee. If the confirmation isn’t rushed, Democrats and independents may gain seats in the midterms, which would force the White House to choose a nominee with wider appeal.
In addition to citing his credentials, some liberals have promoted Kavanaugh based on his personal kindness and intelligence. Yet even nice and smart people can have values that are radically out of step with the American public. Yes, Kavanaugh has mentored female lawyers and hired a diverse range of clerks, but it is a sad commentary on this president’s record of nominating shockingly unqualified candidates for office and what we have come to expect of men (and Republican men particularly) that these are seen as stand-out virtues. We are glad if Kavanaugh has not been discriminatory in his hiring practices. What his rulings would do to women’s rights and to security and opportunity for people of color and immigrants is much more important.
Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired. More respectably, some liberals may believe that offering him public support would encourage him to keep an open mind and engage their arguments. However, we doubt that genuflection of this sort would move a nominee of such extreme views toward better legal decisions. Besides, these kinds of insider games further consolidate the power of unaccountable elites; they don’t serve our democracy.
Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.
David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann are professors at Yale Law School.
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