President Donald Trump’s nomination of Brett Kavanaugh to be an associate justice of the Supreme Court ensures that the nation’s top court, already more conservative than it has been in decades, would be more reliably so, just as the president promised.
Now the U.S. Senate must determine whether Kavanaugh is an unwavering ideologue unfit to be on the court or someone with the wisdom, creativity and flexibility to transcend the nation’s cultural divide. As with most of our national conversation, we need to find some commonality to move the country forward.
The confirmation hearings to replace Anthony Kennedy should elicit whether Kavanaugh has preset ideas on raging social issues, and the Senate should not confirm him if he does. Ideally, the next justice should be willing to take a modest view of the court’s power. Making the court less of a cudgel in our tribal warfare would be a very good way of exercising its power.
The difficulty facing any modern-day nominee is that elected officials make cynical pledges to appoint justices who will deliver a specific policy agenda. Unfortunately, Trump reinforced that view when he outsourced recruitment to a conservative group whose list has yielded his nominees. Before Kavanaugh even finished his remarks at the White House, the hypercharged ads in support and against his nomination had begun.
Unfortunately, Kavanaugh is too much like Trump’s first pick, Neil Gorsuch, with whom he went to high school and who has punched all the boxes of the insider elite, someone who thrives on the Washington parlor games of conservative legal theory. Some regional and educational diversity would have been better for the court. Kavanaugh is sure to be deeply questioned on his overly partisan and aggressive role in special counsel Kenneth Starr’s investigation of President Bill Clinton, which led to his impeachment. While Kavanaugh does not believe a president can be prosecuted in a criminal case or face civil liability while in office, he does believe a president could be impeached for misleading the public and lying.
Ironically, Monday’s nomination came on the 44th anniversary of the death of former Chief Justice Earl Warren, whose court ushered in the most sweeping expansion of individual rights in the nation’s history, cases that struck down school prayer, established the right of education equity for minorities, expanded the protection of those accused of a crime to remain silent and have the services of a lawyer, and protected suspects from improper police searches. Under Warren, the court also found a constitutional right to privacy, a case that later became the intellectual underpinning for Roe v. Wade. The struggle to swing the pendulum back on some of those rulings has created this successful political movement to shift the court’s ideological balance toward the right.
In accepting the nomination, Kavanaugh said, “I will keep an open mind in every case.” In 1987, this editorial page supported the confirmation of Ronald Reagan’s choice of Anthony Kennedy because we said he would decide “each case as it comes before him without preconceived notions.”
The upcoming Senate hearings will determine whether that can be said again.