July 10, 2018
Evaluating a Supreme Court Nominee
Vincent C. Immel Professor of Law, Saint Louis University School of Law
President Trump’s nominee for the Supreme Court, Judge Brett Kavanaugh, has impressive credentials and intellect but those traits mark simply the beginning of an appropriate and normal assessment of the qualifications a Supreme Court nominee. Confirmation for a Supreme Court vacancy also always requires an intensive consideration of the nominee’s judicial values and character and the Court’s needs at the time. That is certainly true today.
Supreme Court nominations are unique and accordingly demand a higher standard than applied to other presidential personnel decisions. Unlike the vice president or Cabinet members who help a president discharge executive branch responsibilities, Supreme Court justices sit atop an independent branch of government. Their mission is to wisely interpret law, to act as a check on the president, Congress, other federal courts, and state governments, and to vindicate individual rights. Supreme Court justices have life-tenure and will serve without further review long beyond the presidents who nominate them or, generally, the senators who confirm them. Justice Anthony Kennedy’s service spanned six presidents; Justice John Paul Stevens, seven.
These constitutional characteristics, of independence and longevity, require that the Senate exercise a far more intensive scrutiny of Supreme Court nominees than of other presidential nominees. The Constitution empowers the president to nominate for the Supreme Court but the Senate has an equal responsibility to subject a nominee to a searching examination.
And that consideration must go far beyond ascertaining that a nominee is smart and has judicial experience. After all, Judge Merrick Garland had better credentials than Judge Kavanaugh. He had served nearly 20 years on the United States Court of Appeals for the District of Columbia, often called the second highest court in the land, without ever having been reversed when President Barack Obama nominated him for the Court. Republicans and Chief Justice John Roberts, had praised his talents effusively. Yet contrary to the text of the Constitution and prior practice, Republican Majority Leader Mitch McConnell argued that Obama’s power to make judicial appointments to the Court ended during a presidential election year and he and his Republican colleagues refused to give Judge Garland even a hearing or a vote.
Except for the unprecedented mistreatment of Judge Garland, the Senate has examined a nominee’s judicial values and philosophy during the last 50 years and often before then. That has especially been true in cases like this one where the nomination was based on an ideological screening and seems likely to herald massive shifts in prevailing judicial doctrine. It should do the same with Judge Kavanaugh.
Many of Judge Kavanaugh’s proponents hope that his confirmation will produce Court decisions overturning Roe v. Wade, curtailing affirmative action, expanding gun rights, cutting environmental protections, overturning the Affordable Care Act, and allowing discrimination against same sex couples. Justice Kennedy served on the Court only after the Senate decided that Judge “Robert Bork’s America” was not consistent with constitutional values as it saw them. The Senate has an obligation to consider the likely shape and rationale of constitutional and statutory interpretations of a Court with Judge Kavanaugh.
As most past presidents have recognized, context matters. They have not thought simply of ideological outcomes but of the Court’s needs more holistically. President Dwight D. Eisenhower appointed William Brennan in part because he was a Democrat and the Court lacked a former state judge. After winning a narrow election, Bill Clinton nominated Judges Ruth Bader Ginsburg and Stephen Breyer respectively in part because Republican senate leaders recommended those choices. Notwithstanding the fact that nearly 3 million more voters preferred that Hillary Clinton, not Trump, nominate justices and that the Senate is narrowly divided, 51-49, Trump used an ideological screen rather than seek the balance that context suggests in selecting Justice Kennedy’s replacement.
Judge Kavanaugh’s effusive praise of President Trump at the announcement ceremony was troubling and highly inappropriate for a sitting judge and a Supreme Court nominee. Judge Kavanaugh proclaimed that “Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary. No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.” Unless Judge Kavanaugh happens to have studied presidential behavior regarding the more than 160 Supreme Court nominations in American history he would not actually know whether the second sentence in his quote above is true or not. Such sycophancy characterizes the behavior of Vice President Mike Pence, Kellyanne Conway, and other Trump subordinates, but a current and prospective member of the nation’s independent and non-partisan branch should not be propagating White House talking points as Judge Kavanaugh did. Most recent nominees have simply thanked the president who nominated them; none bestowed such a glowing and inappropriate endorsement.
More importantly, Judge Kavanaugh’s willingness to praise Trump’s “appreciation for the vital role of the American judiciary” is astounding given Trump’s pattern of attacking federal judges. During the 2016 campaign Trump repeatedly suggested that Judge Gonzalo Curiel, a federal judge in California who was born in Indiana, was biased against Trump because “he’s of Mexican heritage.” Trump denounced a respected jurist President George W. Bush had appointed as a “so called judge” after he blocked Trump’s immigration order regarding seven predominantly Muslim countries. He used Supreme Court reversals of Ninth Circuit decisions to castigate the judicial system. “But what does that tell you about our court system? It's a very, very sad thing." Judge Kavanaugh prefaced his remarks with the phrase “[t]hroughout this process” but, especially given this context, it’s hard not to be appalled by Judge Kavanaugh’s comment or his thought that such submissiveness to a president who has made sport of attacking the judiciary is appropriate.
That behavior is especially troubling because Judge Kavanaugh will have occasion to consider, among other pressing issues, questions regarding the constitutional and statutory boundaries of presidential power. The Trump presidency, more than any other in modern times, has presented dangers to our constitutional system through Trump’s hostility to the rule of law and to basic norms of democratic accountability as reflected in his words and deeds. Will Judge Kavanaugh act as an independent justice in such cases given his obsequious comments at the White House ceremony?
Judge Kavanaugh, like Judge Garland, is entitled to hearings and to have his record, views, and qualifications discussed in a thorough and civil manner. Hopefully he’ll receive what Garland was denied. It’s great that Judge Kavanaugh is intelligent and credentialed. But those are necessary, not sufficient, grounds for service on the Court. No one is entitled to be a Supreme Court justice. That’s a decision to be made based on how a nominee’s service will impact our constitutional system for decades to come.