San Francisco Chronicle - (Sunday)
Kavanaugh would further divide us
Yale Law School, from which U.S. Supreme Court nominee Brett Kavanaugh got his law degree, issued a statement about him with glowing quotes from professors attesting to his impeccable legal credentials.
Perhaps the Yale Law faculty deemed his credentials impeccable because he graduated from Yale Law School. Then again, Clarence Thomas also graduated from Yale Law School (as did I).
The reason Kavanaugh should not be confirmed has nothing to do with his legal credentials. It’s the blatantly partisan process used by Donald Trump and Senate Republicans to put him on the Supreme Court.
The framers of the Constitution understood that Americans would disagree about all manner of things, often passionately. Which is why they came up with a Constitution that’s largely a process for managing our disagreements, so that the losers in any given dispute feel they’ve been treated fairly. That way we all feel bound by the results.
I don’t need to point out to you that we have deep disagreements these days. We’re in one of the most bitter, divisive, partisan eras in living memory. So it’s not enough that a prospective Supreme Court justice have impeccable legal credentials. The person must also be chosen impeccably, so that the public trusts he or she will fairly and impartially interpret the Constitution.
Process matters, now more than ever. If Kavanaugh is confirmed, then it will be due to a process that has violated all prevailing norms for how someone should be chosen to be a Supreme Court justice.
Let us count the ways.
First, Senate Majority Leader Mitch McConnell, who wouldn’t recognize a fair process if it fell on him, refused for eight months even to allow the Senate to vote on Merrick Garland, President Barack Obama’s nominee to the Supreme Court. That itself was unprecedented.
Then, last year, on a strict party-line vote, Senate Republicans invoked what had been known as the “nuclear option,” lowering the threshold for ending debate on a Supreme Court nomination from 60 votes to 51 to win Senate approval for Trump’s first nominee, Neil Gorsuch.
Now, McConnell is rushing the vote on Kavanaugh with almost no opportunity for Democrats to participate.
The Trump administration has asserted executive privilege to shield 100,000 pages of Kavanaugh’s White House records from release — an assertion so broad that senators can’t even read behind closed doors documents that might shed light on issues the public might reasonably consider important, such as whether Kavanaugh endorsed the Bush administration’s infamous torture memos.
Meanwhile, Trump himself is an unindicted co-conspirator in a government criminal case concerning campaign finance violations in the 2016 election. He is also under government investigation for possibly obstructing justice and for colluding with a foreign power to intrude in the 2016 election on his behalf.
But Senate Republicans are unwilling to delay a vote on Kavanaugh until these cases are resolved.
Some of the issues at stake in these cases are likely to come before Kavanaugh if he joins the court, yet Kavanaugh refuses to agree to recuse himself from deciding on them.
Finally, many of the jobs Kavanaugh held over the past quarter-century required not scholarly legal credentials but rather a willingness to act as legal hatchet man in some of the most divisive issues the nation faced during those years.
Kavanaugh helped devise the strategy to impeach Bill Clinton and went on to help George W. Bush wage war in Iraq.
Given all this, can America trust that Kavanaugh will fairly and impartially decide the meaning of the Constitution? Obviously not. The reason McConnell and the Republicans are steamrolling his confirmation, and why Trump nominated him in the first place, is because they know for certain he won’t.
Put aside all the “impeccable credentials” rubbish, and you find a fiercely partisan conservative who will further tip the court’s balance along partisan lines.
Senate deliberation over him is a charade. Everybody on the inside knows what’s going on here. And almost everyone watching from the sidelines does, too. All of which is especially damaging to the Supreme Court and to the nation at this intensely fractious point in history.
When a sitting president spews venom daily, and when Congress has become a cauldron of bitter partisanship, America needs a Supreme Court that can be trusted to fairly manage our national disagreements. The Constitution demands no less.
Tragically, Brett Kavanaugh would further divide us. For this reason alone, he should not be confirmed.
© 2018 Robert Reich
Robert Reich is a professor of public policy at UC Berkeley. His latest book is “The Common Good,” and his newest documentary is “Saving Capitalism.” To comment, submit your letter to the editor at SFChronicle.com/letters.