Supreme Court

A “Liberal Feminist” Endorses Kavanaugh

Noted appellate attorney Lisa Blatt on why she supports the confirmation of Brett Kavanaugh, and shows how we should evaluate judicial nominees from the other side of the aisle.

|The Volokh Conspiracy |

Lisa Blatt is among Washington, DC's most accomplished appellate attorneys. Her record in the Supreme Court—prevailing in 33 of 35 argued cases—is unparalleled. She's also an avowed liberal, and in Politico she explains why she supports the confirmation of Judge Brett Kavanaugh to the Supreme Court. Here's a taste:

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

It's easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.

Democrats should quit attacking Kavanaugh—full stop. It is unbecoming to block him simply because they want to, and they risk alienating intelligent people who see the obvious: He is the most qualified conservative for the job.

The last point is quite important. The President gets to select judicial nominees. Thus a Democratic president can be expected to nominate liberals, and a Republican president can be expected to nominate conservatives. If each selects nominees from within the legal mainstream of their own party, they will select nominees that embrace judicial philosophies those on the other side of the aisle oppose. If this is reason enough to oppose a judicial nomination—and I have argued for over 15 years that it is not—then we are condemned to partisan votes for Supreme Court confirmations, and the prospect of no confirmations when the Senate is controlled by the opposite party ever, not just in Presidential election years.

Unless and until more prominent figures—on both sides of the aisle—take Blatt's approach, the partisan conflict over judicial confirmations will get progressively worse. Republicans and Democrats have each done plenty to poison this well (think Garland, Keisler, Estrada, Kagan, BeVier, Bork, Siegan, etc.). It will take principled stands by members of each party to make things better.

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85 responses to “A “Liberal Feminist” Endorses Kavanaugh

  1. You’re making the mistake of starting from the assumption that liberal judicial beliefs are legitimate. They are not. There isn’t a “conservative” and “liberal” way of interpreting the Constitution. There’s a method of interpreting it that involves writing new law, and a method that does not.

    1. Exactly, the dispute is between original public meaning and the strange notion that the constitution is a “living document” or put another way it means whatever five people say it means, i.e., nothing.

      1. Exactly. The “conservative” equivalent of what the liberals do would be finding a Constitutional right to a taxpayer provided gun or a Constitutional right of a fetus to life. Conservatives justices do no such thing.

        1. I’m so old, I can remember when conservative justices discovered a right to free-ride on public sector unions, and also discovered that states have a right to be free of federal scrutiny of their elections if other states aren’t being scrutinized as heavily.

          1. There’s no right to free ride on public sector unions. Congress required that one union represent all members of the company. They can abolish that if they so wish.

            Also, the 15th Amendment CLEARLY says legislation Congress passes has to be “appropriate.” That means that using an inappropriate formula because you can’t pass an appropriate one is unconstitutional.

            If the framers intended Congress to be able to pass any legislation it wanted, why add the word “appropriate?”

            1. That’s even funnier. The 15th enabled the Court to strike down any voting rights legislation the Court deems not “appropriate”? I thought conservatives were supposed to dislike the “Constitution enacts my policy preferences” school of interpretation. I note that the actual Supreme Court never suggested that “appropriate” contained an interpretive canon.

              1. If the Constitution requires something be appropriate, then it’s the court’s job to strike down laws that are objectively inappropriate.

                1. Really? Well, that’s good, because the 14th Amendment also has an “appropriate legislation” section. So it looks like we can agree that any laws that fail to protect due process and afford equal protection should be struck down, and objectively laws restricting the availability of abortion or criminalizing sodomy qualify.

                  What? You don’t think that’s “objectively” true? I think I’ve spotted a flaw in this approach, then, which may explain why the Supreme Court’s incredibly shoddy analysis in Shelby County didn’t stoop this low.

            2. As for the unions, they’re already prohibited from using nonmember fees for political activity. The idea that they’re also prohibited from using them to represent the nonmembers in nonpolitical activities, even while they have to represent the nonmembers under the statute, is, yes, mandated free-riding. Yes, Congress can get rid of it by essentially abolishing public sector unions, but it’s still absurd.

              1. The idea that they’re also prohibited from using them to represent the nonmembers in nonpolitical activities, even while they have to represent the nonmembers under the statute, is, yes, mandated free-riding.

                Unions never challenged the requirement that they represent nonmembers, so the Court never held that they were required to do so.

                1. Because, duh, the nonmembers weren’t free-riding. Until now.

  2. “The last point is quite important. The President gets to select judicial nominees.”

    Of course, this is no longer true, so…

    1. Not true how? Because the Senate doesn’t have to confirm the nominee?

      When Obama tried to deny Alito an up or down vote when he was in the Senate, not giving a nominee a vote seemed ok.

      1. Are you referring to Supreme Court Justice Samuel Alito, or some other Alito?

        1. Did he attempt to deny him a vote of not? Just because he didn’t succeed doesn’t erase the attempt.

          Once again Obama himself:
          “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party. This has become just one more extension of politics,” he said. “What is also true is Justice Alito is on the bench right now.”

          He knows he and the Democrats were at least as much as fault as the GOP for the judicial wars. Actually more so.

          I think the absolute worst was Miguel Estrada being denied an appellate seat for the crime of being young and Hispanic. That’s what really started it.

          1. No, he didn’t. Not beyond rhetorically. But you know that because all of a sudden Estrada is the REAL starting point.

  3. Hello, Ms. Blatt.

    May I introduce Senator McConnell?

    1. Only after you’ve introduced her to Senator Reid.

      1. Remind us again, what role did Mr. Reid play in denying Merrick Garland a hearing?

        1. He escalated the confirmation war by killing the lower court filibuster.

          I understand you think Dems can do things without consequence but its not how the world works.

          When you guys are back in control, retaliate away.

          1. Which has zero to do with the Garland case.

            1. As Obama said:
              “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party. This has become just one more extension of politics”

              You got the votes you get the nominee confirmed. Let’s not forget that Obama was part of an effort to deny Alito a vote when he had enough votes for confirmation.

              Really the only difference between Garland and Harriett Meirs is that Bush had the grace to withdraw his nominee when he saw she didn’t have the votes. She didn’t get an up or down vote either.

              1. “Really the only difference between Garland and Harriett Meirs is that Bush had the grace to withdraw his nominee when he saw she didn’t have the votes. She didn’t get an up or down vote either.”

                This is revisionist history bullshit.

          2. Bull. Also spit. I tire of going over this because rehashing it doesn’t move the needle with folks like you one bit, but when Reid finally pulled the trigger on judicial nominations it was only after a couple years of trying to break the GOP blockade on Obama’s judicial nominations through other means. Yes, he used lifting the filibuster as a threat a few times, but only did so when the GOP continued its unprecedented obstinacy. Reid’s move may have given McConnell pretext to do what he did, but McConnell was going to block any SC nominee of Obama’s, and was going to ensure a Republican president’s pick no matter what. Hell, it’s entirely possible ? I’ll even say likely ? that under a Pres. Clinton we’d now have two open seats on the court while he and all of you all constantly strained to explain why that’s perfectly fine.

            1. “unprecedented obstinacy”

              Assuming history began in 2008, this is correct.

            2. “Reid’s move may have given McConnell pretext to do what he did”

              Rosami’s initial point.

              We do not know what McConnell would have done absent Reid’s actions but we do know Reid’s act gave him the political cover to act the way he in fact did.

              He could only block Garland because the other GOP senators let him, he is leader, not all powerful dictator.

              1. We do not know what McConnell would have done absent Reid’s actions

                We don’t know, but I’d say we can make a pretty good guess.

            3. And. Harry Reid alone couldn’t pull the trigger — a majority of the Senate was required.

            4. Hell, it’s entirely possible ? I’ll even say likely ? that under a Pres. Clinton we’d now have two open seats on the court

              Given that leaving those two seats open would result in liberal-leaning justices having a 4-3 majority on the court, I’m not quite sure you understand the way things would play out.

              1. Good point, I wasn’t doing the math in my mini-rage. We’d likely just maintain the 4-4 split for 2-8 more years.

        2. Uh, he suggested doing the same thing when the position was reversed?

    2. The Garland butt hurt never fails to amuse.

      1. Yes, that’s because you got what you want, and because you’re a dick.

        1. Good. Good. Let the hate flow through you.

          1. ^^^ Believes the Empire got a raw deal from those lousy collectivist rebels and their hippy army. ^^^

        2. Yes, we wanted a judge who wouldn’t find imaginary rights to kill fetuses and have buttsex with other dudes.

          1. Not a minute of a day passes without you lusting over some guy’s butthole, does it?

      2. Neither does the Bork hurt.

        1. Have you ever seen me complain about Bork?

  4. Yes, full-throttle irrational partisanship demeans the partisan, and it is painful that every election seems to move the candidates further and further in that direction. But this won’t be fixed by lecturing the politicians, they will continue to slide until the voters start clearly rejecting the offenders. Until then, the number of irrational partisans in Congress will grow simply because the process selects for them.

    1. I agree that the process selects for excessively partisan candidates. But in addition to voting for candidates who are less partisan, one can also try to fix the process so that it is more likely to result in the election of moderate candidates, which in turn tends to reduce the level of partisanship. Possible approaches include: 1. Reapportionment by an independent commission rather than the legislature; 2. Open primaries; 3. Ranked choice voting.

  5. “then we are condemned to partisan votes for Supreme Court confirmations, and the prospect of no confirmations when the Senate is controlled by the opposite party ever, not just in Presidential election years.”

    And…?

  6. For being such a brilliant litigator, she is hopelessly naive.

    Judicial picks in the federal system are inherently political, always have been and always will be.

  7. Hmmmm. . . a lawyer with a strong win record at the Supreme Court publishing her favorable opinion about a Supreme Court candidate, i.e. the very person who will judge her arguments.

    The lady doth compliment too much, methinks.

    1. And such fulsome compliments too: “He is the most qualified conservative for the job.” Right. Of course.

  8. This is just guild loyalty.

    1. Well, yes, in a way it is, but not in the perjorative sense that you seem to want to imply. Appellate advocates at Ms. Blatt’s level — and frankly most of the contributors to this blog — recognize and value quality, incisive legal thinking, even when they do not agree with the ultimate decision or reasoning of the speaker. And they treat their opponents with respect.

      As far as I’m concerned, if that’s guild loyalty, I’m all for more of it, and for it spreading to other parts of our social discourse.

      1. From her article:

        I have no insight into his views on Roe v. Wade?something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

        What I mean is that she seems to subscribe to the notion that the conclusions Kavanaugh reaches are motivated by careful legal analysis, and are “conservative” only because he thinks they are what the Constitution requires. I don’t believe that. I believe that Justices usually – OK, there are exceptions – start with results and that those results then motivate the analysis.

        Isn’t that the way lawyers work? And let’s be frank. Cases don’t usually get to the Supreme Court unless there are at least some sorts of at least plausible arguments on both sides, so he has stuff to work with.

        Further, does she really “have no insight” into his ideas about Roe? Come on. This is more guild BS. It’s of a piece with the standard nominee claims that they have no opinion on the matter, despite being prominent experienced judges and Roe being one of the most discussed Supreme Court cases in American history.

        “Guild loyalty” may be the wrong term, but I’d say she clearly subscribes to some guild mythology.

        1. Noted legal expert bernard11 has determined that Lisa Blatt is clearly mistaken in her analysis of Judge Brett Kavanaugh. Noted legal expert bernard11 points out that he disagrees with Lisa Blatt, which clearly establishes that Lisa Blatt is incorrect. Noted legal expert bernard11 is in no way daunted by Lisa Blatt’s extensive experience as an appellate advocate, which is clearly inferior to his experience commenting on internet websites. Clearly.

          1. jph12 clearly lacks the ability to understand the difference between an expression of opinion and a statement of fact.

            1. Oh. And if you think my opinion as to how predictable Kavanaugh is is unreliable, maybe you could check this out. The article was written by a former Kavanaugh clerk.

              Among other quotes, it speaks of a long, unbroken line of consistent decisions from Judge Kavanaugh on issues of religion and abortion.

              And says, Judge Kavanaugh’s record on issues of concern to social conservatives is rock solid, and it far exceeds that of any other contender. He is the right person for this pivotal time.

              Yeah. The guy is unpredictable. Bullshit.

              1. No, I just think your expression of opinion is stupid.

                You know what else leads to consistent decisions? Principles.

        2. Oh, I don’t know, I think there’s certainly a bit of a chicken/egg quality to whether results drive the ideology, or the other way around. To be sure, a given ideology will tend to drive toward a given set of results. But I think it’s a bit too cynical to be dismissive of whether (most of) the folks who get positions such as this are purely outcomes determinative, on either side of the ideological divide.

          1. Here is a paragraph from the NR article linked to elsewhere:

            Judge Kavanaugh’s positions on these issues stretch back to time before he was on the bench. He is a product of Catholic elementary and high schools. As a lawyer in private practice, he chaired the Federalist Society’s Religious Liberty Practice Group and put aside his paying law-firm work to author pro bono amicus briefs strongly advocating for religious believers in two significant Supreme Court cases, Good News Club v. Milford Central School (2001) and Santa Fe Independent School District v. Doe (2000). He is a lector at his parish, and he volunteers with Catholic charities, teaches and mentors in Catholic (and other) schools, and coaches his daughters’ Catholic Youth Organization (CYO) basketball teams.

            Given his background, do you think his decisions about abortion will derive from legal reasoning, or the other way around?

            Will you believe when he inevitably says he will approach those cases with an open mind, and be guided strictly by the law?

  9. How is “he will rule (this or that way) because he believes that it is the constitutionally correct result”, an endorsement? I’m virtually certain that one could say the same thing about RBG, or Willis Vandevender.
    All she appears to be saying is that he is not likely to take a bribe.

  10. If the Democrats were _really_ smart, they would agree to Kavanaugh by acclamation. That would protect Democratic Senators in toss-up states, and lay the groundwork for either (a) a more convincing argument next time they really want to fight a nomination, or (b) a more convincing argument next time they get to _make_ a nomination: “Look, we’ve realized that we have to let the president nominate qualified candidates even if we oppose their views. You do the same.” It would at least help.
    Instead they are fighting tooth and nail even though they are clearly going to lose. Whichever way their toss-up-state Senators vote will anger important parts of their support. They sacrifice credibility as everyone knows that they were going to do exactly the same thing no matter who Trump appointed. Lose-lose.
    Only they can’t do what makes sense. Their base is out of their minds and they have no choice but to cater to it.

    1. Oh, this is hilarious. When has Mitch McConnell been swayed by an argument about procedural fairness?

      And the “gosh, we just don’t know what Kavanaugh’s going to do on the bench” attitude is hilarious too. Contrast what was said about him *before* he was picked–he was a conservative warrior, etc.–with what’s been said since: oh, he’s very even-handed! Right.

      (It won’t let me post the link, but google “A Conservative’s Conservative Before He Was Nominated and An Open-Minded Jurist After” for an article on this.)

      This is nest-feathering. Prominent Supreme Court advocate praises pick for the Supreme Court. Nothing more.

      1. Yes.

        Adler’s oh so principled Cassandra act here is silly.

        When Roberts was up, half the Democrats voted for the guy. Only a few voted for Alito, but they didn’t block him or anything, and honestly he was a strong conservative and it was a swing vote & he did shift the Court n various issues. Which is fine on legitimacy grounds — Bush won in ’04 and so on. Republicans mostly didn’t vote for Sotomayor or Kagan, though that was more of a Roberts type situation.

        Garland was a special case & Democrats (and a few others who respect the injustice of it all) were right to be very upset. Kavanaugh is an Alito situation on steroids with Trump (simply not an ordinary situation, especially with him under investigation and executive power issues key to case against him among other things) & Democrats have every right to be against him. All things equal, Republicans should be against a liberal version. Blatt’s arguments are lame.

        A few appellate battles like Estrada are going to happen as well. As a whole, the appointment process for lower courts probably should be improved but ending the filibuster alone helped move things along there. Appointment commissions and agreements to offer the other side one nominee ala Bush41 etc. can be imagined too.

        But, Blatt’s op-ed doesn’t do much to advance the argument.

        1. “Democrats (and a few others who respect the injustice of it all) were right to be very upset.”

          “Democrats have every right to be against him”

          Of course, my tribe has a right to be upset at things we don’t like, your tribe does not have the same right.

          “injustice” is LOL, its politics, justice has nothing to do with it. Same for Bork and Estrada tbh.

        2. Only a few voted for Alito, but they didn’t block him or anything,

          They tried.

    2. Yep, that would be the correct way to take the high road.

      But there is an election coming up and there are a lot of highly charged partisan Democratic voters that are Trump as the Devil incarnate, which of course makes Kavanaugh devil’s spawn. In some races it would make some voters sit on their hands. But it could definitely be a double edged sword for Senators like Manchin and Nelson and McCaskill. Actually it would only hurt Manchin of he votes against Kavanaugh, but it’s going to hurt Nelson and McCaskill whichever way they vote. It will belie their moderate pretensions in pro-gun states of they vote against him, but alienate their left-wing base of they support him.

      1. The high road and $1.50 gets the Democrats a cup of coffee. Mitch McConnell is about as likely to reciprocate as he is to fly to the moon.

        1. What’s the low road get them?

          Breaking Collins and Murcowski off was the only hope. Do you think liberal tactics here are calculated to do that?

          1. I’m not sure what sort of “tactics” are being cited here.

            Republicans benefited from the “low road” in regard to Gorsuch et. al. and people like you were glad of it. Dems had a few victories by playing judicial confirmation hardball during the Bush years but eventually there was a compromise (Kavanaugh benefited) and they won the Senate anyhow.

            I’m not sure what sort of “tactics” is going to convince Collins and Murcowski (sp) here. They claim that their constituents are less concerned than during the health care battle, which isn’t too surprising since there was more immediate effects there than let’s say abortion which in Maine and Alaska is probably not much at risk anyhow.

            If Kavanaugh was seen as really horrible, maybe they and their voters might be more wary. Pointing that out isn’t going to be some polite debating society process. Of course, people who like Kavanaugh will find the criticisms overblown b.s.

            1. “Dems had a few victories by playing judicial confirmation hardball during the Bush years but eventually there was a compromise (Kavanaugh benefited) and they won the Senate anyhow.”

              The “compromise” was a Democratic victory.

          2. Uh…the dubious premise was that the “high road” would get them cooperation from McConnell in the future, not that it would somehow stop Kavanaugh’s nomination. That premise is dumb. Your argument that criticizing Kavanaugh’s record may not convince Collins and Murkowski to jump ship is probably right, but it’s not as if there’s another way to do that (particularly when the Rs are shutting down the document-gathering and Collins and Murkowski are going along).

            1. Collins is useless.

              She loves to posture as the Great Moderate Republican and get fawning press coverage, just before she goes along with McConnell, at the last possible moment, to maximize the fawning.

    3. I’m sure the DNC is grateful for your advice.

      Send the consulting bill to them, c/o the North Pole.

      1. So bitter.

        You are going to re-take the House in November, cheer up.

        Fat lot of good it does without the senate though so maybe you should stay bitter.

        1. Might do some good on non-court issues.

  11. Both sides do it [Garland is just what one person back in the day suggested was a good policy, kinda!] but when the Democrats ended the filibuster for executive appointments they did it wrong!

    1. Bork? Yeah. If only Reagan — knowing he was playing a weak hand at the moment in his presidency & replacing a swing vote — didn’t add to the problem by appointing someone he should have known was going to be a divisive choice that even a few members of his own party would be unable to vote for.

      “Principled stands” don’t mean voting for bad candidates & the ultimate solution here surely isn’t unilateral disarmament. Someone who is an honest broker here knows this and her op-ed if anything only worsens the situation since (as some have pointed out here and elsewhere) its arguments are so weak.

  12. Including Bork on the list of “well-poisoning” cases is ridiculous.

    Face the facts, Jonathan. Bork was an extremist and near crackpot, based on his own words.

    Unlike Garland, he got a hearing and a vote, and was rightly rejected. It’s a phony issue, and it does you no credit to raise it.

    1. Who cares if he got a vote? It’s irrelevant. The Democrats opposed him because he wouldn’t find a right to kill babies or go to public school if you’re an illegal in the Constitution.

      1. He also couldn’t find a right to free speech outside of vey narrow limits – political speech only, he said.

        Here I thought conservatives had become free speech fanatics. Not Adler, I guess.

  13. “It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications.”

    They were part of a party pledged in their presidential platforms to appoint prolife judges, yet they persuaded themselves to vote for a candidate they knew to be for “abortion rights.”

    If you sincerely believe that abortion destroys human life and can and should be legally banned, how can you consider a judge “qualified” who thinks abortion is a constitutional right? Or if you think banning abortion is unconstitutionally enslaving woman, why would you consider a judge “qualified” who thinks such horrible enslavement would be legal?

    When you get down to it, “qualified” means being smart, honest and wise enough to be able, in general, to make the right calls as a judge, and to avoid egregiously awful decisions. Maybe a wrong decision here and there – that’s part of our human frailty – but if you really think they might make a decision which (depending on your viewpoint) is either pro-murder or pro-slavery, how can you think a judge so inclined is qualified?

    1. If Mrs. Blatt is wavering in her commitment to a judicially-enforceable right to abortion, maybe she isn’t actually persuaded that “abortion rights” are essential to the survival of women.

      (Indeed, at least in some places, a majority of aborted babies are female)

    2. Consider someone who is applying to be a basketball referee.

      He got straight As in a prestigious Referee School, he knows all the right people, his old friends praise him to the skies, but he’s on record saying the rules of basketball give players a “right to foul.”

      Is such a candidate qualified?

  14. Kind of curious as to what she thinks having a teenage daughter has to do with Roe. No, reversing Roe would not let you kill that little jerk.

    Before people who haven’t thought this through respond: what are the odds her daughter lives in a red state and/or will go to college in a red state?

    1. Pretty low unless she already lives in one, or can’t get into a good school.

    2. Liberal women mistakenly think that abortion is a women’s issue.

      1. Wrong.

        Liberal women (and men) correctly think that abortion is an individual woman’s issue.

        1. Certainly *not* the baby’s issue.

  15. A Supreme Court practitioner who is going to be looking for Kavanaugh’s vote after he is confirmed endorses him. What moral courage this shows!

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