Judging Judge Kavanaugh
The suspense ended Monday night: After brief remarks, President Donald Trump announced that he’s nominating federal appellate Judge Brett Kavanaugh to be the 114th justice of the U.S. Supreme Court. If confirmed by the Senate, Kavanaugh will replace the justice for whom he clerked a quarter century ago, Anthony Kennedy. How should the U.S. senators who will or won’t confirm him — how should all Americans — judge Judge Kavanaugh?
There was a time when court nominees were evaluated primarily on the basics: ability, experience, knowledge and temperament. Recall that Antonin Scalia, regarded now as a sharp-edged conservative, was confirmed in 1986 by a 98-0 vote of the Senate. Seven years later, Ruth Bader Ginsburg, today’s liberal icon, sailed through 96-3. They were superbly qualified, and that was pretty much that.
Times have changed. Nominations such as Trump’s choice of Kavanaugh have become more partisan and ideological as the court has assumed a bigger role in issues once left to the elected branches. Voters, especially on the right, pay more attention to it than they did 50 years ago. One big factor in Trump’s election was the confidence of conservatives that whatever his ideological unreliability, he would pick conservatives such as Kavanaugh for the court: In 2016 exit polling, 56 percent of Trump voters said Supreme Court appointments were “the most important factor” in their decision, compared to only 41 percent of Clinton voters.
In turn, presidents now give much weight to the judicial philosophy of candidates — in part to avoid unpleasant surprises. Abolition of the filibuster for Supreme Court nominations means a president such as Trump, whose party controls the Senate, has little need to choose appointees who can win votes across the aisle.
Nominating Kavanaugh to replace Kennedy will reaffirm approval of Trump among the president’s supporters and disapproval among his detractors — as did Trump’s 2017 nomination of Neil Gorsuch to fill the seat vacated by the death of Scalia.
The Tribune’s policy has been to favor candidates who have demonstrated their fitness on objective grounds. In 2010, we praised Elena Kagan, nominated by Barack Obama, as “a first-rate legal mind, a respected scholar and accomplished administrator.” In 2016, we admired Merrick Garland for amassing a “long and stellar record on the federal bench” that “has won nearly universal admiration.” We opposed Harriet Miers in 2005 because she appeared ill-prepared for the job.
All of us should evaluate Kavanaugh not on how he is likely to vote on abortion rights, the Second Amendment or affirmative action, but on more fundamental characteristics. Predicting how a judge will rule on any particular question is a fool’s errand: Ask conservatives who were shocked when Chief Justice John Roberts provided the deciding vote to uphold Obamacare.
More important is weighing whether Kavanaugh will do the job in a careful, conscientious way, with a deep respect for the text of the Constitution, the language of statutes and the different responsibilities of the three branches of government. A justice who acts mainly to advance some political agenda will be wrong even if he or she votes in the way we would prefer.
Kavanaugh’s record suggests that by these standards, he’s highly qualified. In 12 years on the U.S. Court of Appeals for the District of Columbia, which deals with especially complex regulatory cases, he’s authored some 300 decisions. Taken as a body of work, they reflect a great allegiance to the words of the Constitution. By the time he faces a confirmation hearing, backers and foes of his nomination will have scrutinized his every word.
Trump’s selection of Kavanaugh will displease Americans who would prefer more liberal justices. Once again, though, all of us are left with the verity that elections have consequences. Voters who object to a president’s choices can turn over the White House and the Senate to the opposing party, which would make very different selections.
In picking Kavanaugh, Trump is nominating an experienced jurist of strong character and principles. Now senators will vet him and decide whether he’s worthy of the highest court in the land.