Our view: Kavanaugh exudes partisanship and lacks candor
Good judges must “keep our emotions in check and be calm amidst the storm.” Even more fundamental, “a good judge … cannot act as a partisan.”
Brett Kavanaugh wrote those words two years ago in a law review article. Last week, the Supreme Court nominee had an opportunity to meet his own standards amid the tempest of a Senate Judiciary Committee hearing. He fell far short, unleashing an overwrought partisan broadside in response to the sexual assault allegations from Christine Blasey Ford.
If those allegations and others are false, Kavanaugh had every right to be furious and defend his good name. (The expanded background check by the FBI appears to have been inconclusive.) But after hearing him lash out — calling the accusations an “orchestrated political hit” fueled by anti-Trump, pro-Clinton forces and paid for by “left-wing outside opposition groups” — how exactly could any Democrat or liberal organization with a case before the Supreme Court be confident that Justice Kavanaugh would give them a fair shake?
His testimony also revealed a lack of candor. Honesty is so basic to sitting on the Supreme Court that it seldom gets discussed. This time, it can’t be ignored. Kavanaugh dissembled, evaded or parried just about every question on whether he engaged in excessive drinking, and sexual misconduct or innuendo, while in prep school and at Yale — reasonable questions after Ford charged that he was “stumbling drunk” when he allegedly assaulted her and numerous Yale classmates described him as a heavy, frequent and belligerent drinker.
The issue is not whether Kavanaugh drank too much or used off-color terms such as “boofed” more than three decades ago. It’s that he misled senators under oath just last week.
This nomination isn’t an easy call because, temperament aside, Kavanaugh meets most of the Editorial Board’s traditional criteria for judicial nominees: He possesses sterling academic and legal credentials. He falls within the broad judicial mainstream, albeit close to the right bank. And his rulings demonstrate a healthy respect for legal precedent.
Those who meet these criteria — such as John Roberts and Neil Gorsuch, both nominated by Republican presidents — have earned our endorsements, regardless of their ideological leanings. If Democrats want less conservative judges, they need to win more elections.
Kavanaugh, however, does not meet the test of impartiality. From the moment he was nominated in July to replace the retiring Anthony Kennedy, a big worry was whether someone who spent much of his professional life in the thick of major partisan battles could move beyond that.
Kavanaugh, for example, played a lead role in the sexually explicit investigation that led to President Bill Clinton’s impeachment. He was part of the legal team that paved the way for George W. Bush to become president, and he served in Bush’s White House.
As a Supreme Court nominee, Kavanaugh’s countless hours of preparation and war-gaming with top White House officials, combined with his fury at Democrats, raise legitimate concerns that he now views himself as an extension of Team Trump.
Would that, along with his expansive views of executive power, influence his position in a showdown between Trump and special counsel Robert Mueller? At a time when the Supreme Court’s credibility is already suspect, does it need another member coming in under a cloud of suspicion with a chip on his shoulder?
For most jobs, presidents deserve to get their chosen appointees. But Supreme Court nominees deserve a greater level of scrutiny. They can serve and shape the nation’s laws for decades, with rulings that affect the lives and liberty of every American. A lifetime appointment to the nation’s highest court is a privilege, not a right.
Based on Kavanaugh’s failure to live up to his own description of judicial attributes, he disqualified himself. We urge senators to oppose his confirmation. The nation can do better.