Tuesday, September 4, 2018
Today's big news is the confirmation hearings for Judge Brett Kavanaugh. Below is a guest post from Lee Rudofsky, former Solicitor General of Arkansas, on Day One of the Kavanaugh hearings. His views are his own and do not reflect the views of any former, current, or future employers or of the Appellate Advocacy Blog.
There is such bipartisan consensus that Judge Kavanaugh is a well-qualified nominee—in terms of academic pedigree, personal character, legal skill, legal experience, and judicial service—that I hardly need mention it. Historically, the only other criteria on which Senators base confirmation decisions is whether the nominee’s judicial philosophy is within the mainstream of American legal thought. And we have learned—thanks to the over 3 hours of “introductory remarks” by Democratic Senators—that Judge Kavanaugh is without a doubt a mainstream judge.
How did the Democrats manage to prove something so detrimental to their attempt to derail this nomination? Let me give you an example. Senator Whitehouse unleashed a verbal assault on 72 recent 5-4 decisions of the Supreme Court that he believed to have been decided incorrectly and in which he believed a Justice Kavanaugh would have sided with the majority. To be clear, even indulging Senator Whitehouse’s assumption on how Kavanaugh would rule, that means Kavanaugh would have decided these 72 cases the exact same way as Justice Kennedy did. (Justice Kennedy was the fifth vote in those cases.) Is Justice Kennedy outside the mainstream of legal thought? Obviously not. If Senator Whitehouse says otherwise, all it shows is that the Senator is falsely equating the mainstream of legal thought with ultra-liberal legal thought. The mainstream of legal thought cannot fairly be defined in such a way as to exclude the legal philosophy of nearly half the judges in our judiciary.
Or take Dianne Feinstein, the Committee’s ranking Democrat. Senator Feinstein faulted Judge Kavanaugh for saying nice things about the legal analysis in Justice Rehnquist’s dissent in Roe v. Wade. Put aside for a second one’s view of the legal analysis on which Roe and its progeny depend, and one’s guess as to how a Justice Kavanaugh might rule in a specific abortion case. The important point here is—or should be—that Chief Justice Rehnquist (a jurist twice confirmed by the Senate for the high court) is decidedly not outside the mainstream of American legal thought. While many liberals disagree with any legal analysis that might limit, narrow, alter or overrule Roe (or Casey, the actual controlling case at this point), it is empirically undeniable that there is a serious legal debate about Roe’s propriety, with incredibly sophisticated scholars on both sides of the legal issue. If Senator Feinstein believes that any slight disagreement with Roe means a judge is outside the mainstream of American legal thought, then she either doesn’t understand the concept or doesn’t really care about it.
I could go on and on. But, in sum, what the Democrats managed to do on the first day of the hearings was to show they don’t really give a hoot about Judge Kavanaugh’s credentials or whether Judge Kavanaugh is a mainstream judge. Instead, they only care about whether they think Judge Kavanaugh will vote the way they want him to vote on their pet policies. This legal-analysis-be-damned-ends-justify-the-means approach to confirmation is a sad symptom of a bigger problem: the elitist view that unelected judges should decide cases based on their individual policy preferences and their individual beliefs as to what would be a fair outcome, as opposed to dispassionately deciding cases based on the law as written by the people or their democratically elected representatives. The Senators who indulge and push this approach do us all and our republic a grave disservice.
The first day of the Kavanaugh’s confirmation hearing was marked by liberal protestors continuously interrupting Republican Senators and screaming their heads off that the hearing is a farce. We’ll see; but if it is a farce, it’s not for the reasons they suggest.