Make court confirmation less partisan

With his nomination of Brett Kavanaugh to the Supreme Court, President Donald Trump has chosen an experienced federal judge with a conservative record whose profile is less ideological than those of some other candidates he considered. Given the number of fire-breathing right-wing judges that Trump had to choose from, he could have done a whole lot worse.

Kavanaugh should be questioned closely by senators about his views of the U.S. Constitution, the role of precedent and, yes, what he thinks of Roe vs. Wade, the 1973 decision legalizing abortion.

Yet no matter what Kavanaugh says at his confirmation hearings, he is likely to be opposed by most if not all Democrats, just as Justice Neil M. Gorsuch was last year when Trump nominated him to the seat that should have gone to Merrick Garland, former President Barack Obama’s nominee to succeed the late Antonin Scalia. Senate Republicans refused even to give Garland a hearing, keeping the Scalia seat open for more than a year in the hopes that it would be filled, as it was, by a Republican president.

If anything, Democratic senators might resist Kavanaugh’s nomination even more strenuously than they did Gorsuch’s. After all, Gorsuch replaced another consistent conservative. Kavanaugh is being nominated to succeed Justice Anthony M. Kennedy, who, while he often joined with the court’s conservatives, sided with liberal justices in reaffirming a woman’s right to abortion and extending marriage to same-sex couples. If Kavanaugh is confirmed, he could cement a conservative majority on an array of other questions from campaign finance law to civil liberties.

These are the unhappy results of an increasingly bitter, increasingly partisan, increasingly dysfunctional judicial selection process.

To be clear, we have plenty of concerns about the appointment of a “reliably conservative” new justice. We share the Democrats’ unease about this nomination and what it means for the court. We worry about the future of reproductive freedom, about the prospects for criminal justice reform and about the fulfillment of the 14th Amendment’s promise of equal protection, to name just a few issues that hang in the balance.

The judicial system works best when judicial nominees are neither rigidly ideological nor biased along partisan lines — and when the Senate doesn’t inject those factors into the process. Placing the emphasis on legal acumen, qualifications and judicial temperament helps promote a Supreme Court that can remain above politics even if individual justices bring different philosophies to the bench. The goal is to have more justices who act and are seen as disinterested interpreters of the constitution rather than as “politicians in robes.”

The agonizing question is whether it’s possible to restore an arrangement in which nominations to the court are not occasions for scorched-earth partisan conflicts.

For more than two decades, presidents of both parties have seen wellqualified, philosophically mainstream judicial nominees blocked or filibustered by senators of the opposite party.

Whatever the outcome of Kavanaugh’s nomination — and we’ll reserve judgment until after the hearings — respect for the Supreme Court will suffer if confirmation of its members and the votes that they cast are seen as nothing more than exercises in partisan politics.