The media discussion surrounding the Brett Kavanaugh nomination for the U.S. Supreme Court has repeated many myths that are simply not true.
First, I heard several times that picking justices is a presidential prerogative and the U.S. Senate owes deference to a president’s pick. That is wrong both with regard to the Constitution and our history. The Constitution allows the president to nominate, but requires that the Senate confirm the nominee. The framers were deeply distrustful of executive power and wanted to make sure that two branches of government independently concurred in every major decision.
With Kavanaugh’s confirmation hearing underway, we should remember that confirmation fights began in the earliest days of American history.
In 1789, John Rutledge was appointed by President George Washington to be one of the inaugural Supreme Court justices. Rutledge was confirmed, but soon resigned and returned to South Carolina to be the chief justice of its highest court. In 1795, Washington named Rutledge to be the second chief justice of the United States after the resignation of John Jay. Rutledge was appointed during a congressional recess and briefly served as chief justice. But the Senate then rejected Rutledge’s confirmation by a 14-10 vote because it disagreed with his views on the United States being neutral in the war between England and France.
Over the course of the 19th century, the Senate rejected about 20 percent of presidential nominees for the Supreme Court. In the 20th century, there were high-profile rejections of John Parker in 1931, Clement Haynsworth and Harold Carswell in 1969, and Robert Bork in 1987.
In virtually all of these instances, the Senate has rejected nominees because of their ideology and views. Presidents select justices because of their likely judicial philosophy, but it is equally appropriate for the Senate to reject them on this same basis. Never have professional qualifications been the sole test for either the president or the Senate.
A second myth is that there are meaningful confirmation fights when the president and the majority of the Senate are of the same political party. The reality always has been that the president can have almost anyone he wants confirmed when his party controls the Senate. This is more true since the Senate changed its rules in 2017 to eliminate the possibility of a filibuster by the minority party.
In January 2006, I testified before the Senate Judiciary Committee against the confirmation of Samuel Alito. During a break, then-Sen. Joe Biden came up to me and said that the hearing was all an exercise in Kabuki theater. He said that everyone in the room knew that Alito was going to be a very conservative justice. He said that the Republicans were pretending that he was open minded and had no ideology, while the Democrats were trying to ask questions to trip him up and he was too smart for that.
It was no different with the subsequent nominations of Sonia Sotomayor and Elena Kagan by President Barack Obama, or Neil Gorsuch by President Donald Trump.
Of course, it is a totally different matter when the president and the majority of the Senate are from different political parties. Most recently, the Republican-controlled Senate took the unprecedented step of refusing to even have hearings on Obama’s 2016 nomination of Merrick Garland to replace the late Justice Antonin Scalia.
A final myth is that nominees should not answer questions about their views on issues likely to come before the court because they then will be seen as biased. The flaw in this argument is that we often know a justice’s views before a case is heard.
Everyone knows how Ruth Bader Ginsburg and Clarence Thomas will vote on whether Roe v. Wade should be overturned. Yet no one would suggest that makes them impermissibly biased. Besides, pretending that a justice does not have views does not make him or her less biased.
A justice’s views on issues such as abortion, affirmative action, separation of church and state and the death penalty matter enormously in how he or she is likely to vote on the court. Supreme Court justices have enormous discretion in interpreting the Constitution and how they vote is very much a product of their values and ideology.
A seat on the Supreme Court is for life. When chosen, the most recent nominees were 50 years old (Elena Kagan), 49 (Gorsuch) and 53 (Kavanaugh). They will likely be on the high court for decades. It is deeply unfortunate that the myths surrounding the process prevent a meaningful confirmation process with real checks and balances.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.