Don’t let Judge dodge answers to key questions
The biggest lie you’re going to hear in the coming weeks is that Judge Brett Kavanaugh shouldn’t have to tell the Senate what he thinks about Roe v. Wade, Obamacare, environmental protection, gun control or presidential abuse of power — issues that could turn out badly for the nation if he is confirmed as an associate justice of the U.S. Supreme Court.
Prospective justices didn’t used to get away with evading critical questions, as Neil Gorsuch did last year. The people have the absolute right to know how Kavanaugh might use the high court’s power and the Senate has the absolute duty to find out.
Florida’s Bill Nelson, one of 10 endangered Democratic senators up for reelection this year in states President Trump won, has acknowledged that responsibility. The question now is whether Marco Rubio and other Senate Republicans will put their party and president before their constitutional duty to citizens.
Gorsuch, Trump’s first appointee, did not change the court’s delicate balance. But Trump and the Federalist Society, the lobby that recommended Kavanaugh, plainly intend for this appointment to tip the court far to the right for a generation. The president’s promise to dispose of Roe v. Wade, which holds that a woman’s right to privacy extends to the decision to have an abortion, is riding on it.
Other worries in Kavanaugh’s nomination come from his work on the District of Columbia U.S. Circuit Court of Appeals and by his earlier career in private practice, in Ken Starr’s investigation of President Clinton, and in the George W. Bush administration.
Of immediate concern is a Kavanaugh article in the Minnesota Law Review arguing that a president should be immune from civil suits and criminal investigations while in office. It’s not hard to suppose how that played with Trump.
“Having seen first-hand how complex and difficult the job is,” Kavanaugh wrote in 2008, “I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible.”
That was President Clinton’s argument against having to respond to a sexual harassment suit from his days as Arkansas governor. The Supreme Court rejected it unanimously.
Kavanaugh, an assistant to Starr in the Clinton probe, has attributed his aboutface to experience. “If the President does something dastardly,” he rationalized, “the impeachment process is available.” What he didn’t say was how Congress would get to that point without the benefit of a criminal investigation such as Watergate or a civil process such as the Paula Jones sexual harassment case.
It’s a fair question how Kavanaugh would vote should any president try to pardon himself or turn to the courts for a free pass from criminal prosecution.
There are also concerns from his writings as an appellate judge. In a Second Amendment case, he dissented to banning semi-automatic rifles, which he said “are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”
He also wrote a panel opinion to delay an abortion for an illegal immigrant teenager. When overturned by the full court, he wrote in dissent about the government’s “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
He also wrote that it was too much to require religious institutions to file a form exempting them from providing contraceptive coverage to their employees.
And in another dissent, he called it “unreasonable” for the Environmental Protection Agency to refuse to weigh compliance costs against the health benefits of regulating emissions from power plants.
The fundamental question for any prospective judge or justice is his or her respect for settled constitutional law — an issue the Senate allowed Gorsuch to stonewall. “The Senate confirmation process has become so degraded that to call it a joke is way too kind,” says Linda Greenhouse, a Yale Law School lecturer who long covered the Supreme Court for the New York Times.
In a Times op-ed last week, Greenhouse took note of legal research confirming that Gorsuch’s sidestepping was “not consistent with historical practice and should not be viewed as a norm.”
At his own confirmation hearing, Anthony Kennedy — the retiring justice whom Kavanaugh would replace — answered forthrightly when asked whether the Constitution protects a marital right to privacy. “Yes, sir.”
Kavanaugh needs to answer the question, too.
The Constitution is no more or less than what the Supreme Court says it is, which is why prospective justices should properly be asked how they interpret it.
If Kavanaugh’s confirmation is a foregone conclusion, as some say, then the Senate has already abandoned one of its most important responsibilities. Let that not be true.
Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O'Hara, Andy Reid and Editor-in-Chief Julie Anderson.