The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.