We at Here and Sphere cannot support the nomination of Brett Kavanagh to be a Supreme Court justice.
I’ve written about the nomination in a column posted about two months ago. There I wrote that I had read all eight of Judge Kavanagh’s significant Appeals Court opinions and dissents. I showed how his arguments evidenced an agenda political, not jurisprudential; that his findings mirrored specific policies advanced by this or that “conservative” think tank, as if he were a Senator, not a Judge. Brilliantly worded his opinions are, but themes are always those of a paper written for a think tank by a researcher working there.
That is not what the nation expects of its High Court. Justices are not to be Senators or Congress-people. they must not be voices for this or that lobbying interest or policy research team.
Once you read the Appeals cases that include a Kavanagh opinion, you do find that the majority opinion, or the dissent, written by other members of the Court,. with one exception, those of Judge Millett — including those by Merrick Garland — read no better than Kavanagh’s. They too deliver many, many words — many more than in a Kavanagh essay — in favor of a law they clearly want to support, in the manner of a legislative majority. Never does one read a jurisprudential rationale in those findings, only a bureaucratic one : this is the way the regulations tell us to rule. Not very edifying. But the other Appeals Court judges are not before us with a Supreme Court nomination. Kavanagh is.
The Court must be peopled by Judges who think for themselves; who do not have an agenda that knows in advance how to decide each case that comes to the bar. Some of the most famous, and controversial Justices, such as Brandeis, Holmes, and Marshall, had a recognizable agenda that they applied when judging, but these agendas were legal, and procedural, evidentiary and grounded in how the law should judge. I do not find that sort of priority in Kavanagh’s rulings.
Presidents have often nominated men and women whose legal theories they liked. Not often have nominees been selected for their political views.
We supported the nomination of Justice Gorsuch because it was clear, from reading 30 of his available opinions, that his findings derived from legal theory; that it was rare to know in advance, on the facts, how he would decide. Indeed, as Al Franken demonstrated in the case that involved the now famous frozen trucker, that Gorsuch insisted on a strict view of the law whatever the facts might be. That was perhaps a shock to some, who believe that justice comes before strict law, but his was a legal rationale, not a political one. His finding was, if anything, quite impolitic.
No such rigor does one find in Judge Kavanagh’s opinions. He says that he supports precedent, but his opinions are quite ready to discard it, or to wish to discard when he cannot, whenever he feels the need; and he grounds his preferences not in legal theory but in debate school dialogue.
I do not for a minute believe that Kavanagh perjured himself on the matters involving his work in the Bush ’43 White House, nor did I find his careful answering of Senator Harris’s deposition-like, gotcha questions disqualifying. Nor was I much moved by Cory Booker’s grandstand play against clear Senate committee rules on document disclosure. There was no need for any of this preening for the television cameras. I’m also not persuaded by those who argue that a President under investigation should not be allowed to nominate Justices. As long as Mr. Trump occupies the office of President, he occupies all of it. He either is President, or he isn’t. There’s no such Constitutional thing as half-President.
All the evidence for assessing Judge Kavanagh’s nomination is right there in his opinions plus the think tank and lobbying group back stories. On the basis of these, I cannot support his nomination. It should not be agreed to.
—- Mike Freedberg / Here and Sphere