The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[I was invited by an online journal to contribute a 1000 word piece on why—setting aside the recent post-hearings accusations—Judge Brett Kavanaugh should be confirmed that could be published before the Senate vote. My essay would then be paired with one opposing his confirmation. Unfortunately, after I wrote the piece, the journal decided it could not devote any additional space to the Kavanaugh nomination. So I am posting it here instead.]
I have been asked to make the case for the confirmation of the President's nomination of Judge Brett Kavanaugh to sit on the Supreme Court of the United States, without regard to the questions raised after the close of his Senate Judiciary Committee hearing. I am happy to do so.
The Constitution gives the President, not Congress, the power to select federal judges, and gives the Senate the power to confirm or reject the President's pick. As with executive branch appointments, a senator should not reject a presidential pick on the ground that he or she would have made a different choice, for the power of choice lies with the President. Rather, our system contemplates that the Senate will confirm presidential picks who are qualified, and reject nominees who are unqualified.
What, then, are the qualifications to be a judge? They include intelligence, legal skills, honesty, and temperament. If the list stopped there, there would be no doubt that Brett Kavanaugh was not only qualified, but highly qualified to sit on the Supreme Court. Indeed, he was rated "highly qualified" by the American Bar Association—an interest group not always receptive to the nominees of Republican presidents.
His twelve years as a judge on the powerful D.C. Circuit Court of Appeals provide overwhelming evidence of these qualifications. His 300 opinions have been thoughtful and well reasoned. His reasoning has repeatedly been adopted by majorities of the Supreme Court. He gets high marks from, well, from everyone for his intelligence, decency, and judicial temperament. He is, in fact, what might be characterized as an "establishment" Republican choice. Had Jeb Bush been elected president, no doubt Brett Kavanaugh not Neal Gorsuch would have been his choice to replace Justice Scalia.
If qualifications for a judgeship stopped there, the case for Kavanaugh would be open and shut. Indeed, much the same case could have been made for my law school classmate Merrick Garland, who sits with him on the same court. But qualifications do not stop with smarts, skills, honesty and temperament.
I agree with Joe Biden who, as Senate Judicial Committee chair, insisted that a nominee's "judicial philosophy" is also relevant. It was on that ground that Biden and his Democratic colleagues—joined by six Republicans—opposed the confirmation of Judge Robert Bork, who easily met the standard for smarts, skills, etc.
What is "judicial philosophy?" As the term suggests, "judicial philosophy" is about the views of a nominee not his or her ability. Above all, it is a nominee's view of (a) the proper method of interpreting our written Constitution, and (b) the proper role of a judge in our constitutional republic. With respect to the former, Brett Kavanaugh is an "originalist," which today means he believes that the meaning of the text of the Constitution should remain the same until it is properly changed by an Article V amendment.
The original meaning of the text is the meaning the general public would have ascribed to the words and phrases of the Constitution in context. This "original meaning" originalism is different from the focus on original framers intent that originalists like Robert Bork once advocated. "Framers intent" originalism asked how the framers would have decided a case now before the court, which is actually a thought experiment, not a historical question. Today's originalists recognize that the application of original meaning to the facts of a case is distinct from identifying the content communicated by the text that is to be applied.
With respect to the role of the judiciary, Judge Kavanaugh thinks it is as much a duty of a judge to invalidate a law that conflicts with the original meaning of the Constitution as it is to uphold a law that comports with that meaning. In contrast, a "judicial conservative" like Robert Bork professed a commitment to "judicial restraint." By this is meant a judge should defer to the majoritarian or "popularly accountable" branches of government.
While old-school progressives once preached judicial restraint, from the Warren Court to today, they have favored judges actively invalidating unconstitutional laws—though many urge conservative judges to defer to legislatures that pass progressive measures, or to precedents progressives like. In short, they favor "judicial restraint for thee but not for me."
In my view, senators are within their prerogative to reject Brett Kavanaugh because they disagree either with his originalism or with his willingness to invalidate unconstitutional laws. But I also believe that, if that is what they are doing, they have an obligation to specify exactly what it is about his judicial philosophy with which they disagree. And they can only do that by identifying what the senators believe to be the superior judicial philosophy. These are issues they failed even to raise during his confirmation hearing.
Instead, we heard a lot from Democratic senators about particular case outcomes they hoped or feared Judge Kavanaugh would reach. But nothing about why such outcomes were more or less consistent with the written Constitution that he—and they—took an oath to support. In contrast, Republican Senators like Mike Lee, Ted Cruz, Ben Sasse and John Kennedy engaged Judge Kavanaugh—in some cases critically—with his views of constitutional interpretation and precedent.
Because I think the meaning of the text of the Constitution should remain the same until it is properly changed by amendment, and that judges have a constitutional duty to invalidate laws that conflict with that meaning, I believe the President's choice of Brett Kavanaugh—who is otherwise highly qualified—should be confirmed. If Democrats disagree they should specify the approach they think is better.
If their "judicial philosophy" is that a judge should simply reach all the outcomes that a progressive Democrat would like the Supreme Court to reach, they should candidly say so. If they believe that the precedents they like—like Roe v. Wade—are sacrosanct, but those they detest—like Citizens United—are to be discarded, they should identify how we know which precedents are binding and which are not.
Failing that, they too should vote to confirm Brett Kavanaugh.