Kavanaugh and the Scales of Justice

Jewish Light Editorial


Outside of sending American troops into harm’s way, perhaps no decision by a president of the United States has more lasting potential effect than nominating a justice for the Supreme Court. 

When Justice Anthony Kennedy, who often has been the decisive vote in 5-4 rulings  by the court, announced his retirement, alarm bells went off among Democrats, liberals and progressives. They feared that a fifth conservative justice could skew the current centrist balance on the court sharply to the right.  Such a shift, according to Sen. Dick Durbin, D-Ill., “would have a profound impact on the lives of all Americans.”

Durbin was responding to President Donald Trump’s nomination of federal appeals court Judge Brett M. Kavanaugh to fill Kennedy’s seat. Durbin called Kavanaugh a “far-right jurist” with decisions “consistently favoring big business and undermining protections of consumers, workers and women, and the environment.” 

He also warned that a fifth conservative justice on the high court might issue rulings protecting Trump from indictment or prosecution if the Mueller probe moves in that direction.

Of equal concern to various organizations, including major Jewish groups like the National Council of Jewish Women, is the potential for a new conservative majority to overrule Roe v. Wade, which grants women the right to an abortion.  During his long service on the court, Kennedy often cast the deciding vote to preserve that right.  

Similar concerns have been expressed by the LBGT community, which is troubled that Kavanaugh might vote to undermine same-sex marriages.  Kennedy had written the majority opinion that upheld that right.

Are such worries overblown? In his statement after Trump announced his nomination last month, Kavanaugh stressed he would recognize the importance of precedent in considering rulings on issues brought before the court.  Such a sentiment is welcome, but only the future can tell whether it is any more than a boilerplate assurance.

From all outward appearances, Kavanaugh seems, in the words of one journalist, like a Supreme Court nominee suggested by “central casting.” Tara Isabella Burton, on the website Vox, says Kavanaugh is “widely seen by both his liberal critics and by conservative commentators as a relatively ‘establishment’ choice,” with “an Ivy League background and impeccable conservative credentials.”

Kavanaugh has a reputation for a warm and engaging temperament and the ability to remain collegial with fellow jurists who disagree with his views. While his paper trail of over 300 opinions from the federal appeals court is by and large conservative, the rulings are not expressed in a strident or combative tone.  

Further, the nominee went out of his way to emphasize that he is a family man who is active in Catholic Church matters, and while he is intellectually strong, he has been consistently respectful in his written opinions.

Supreme Court nominees generally decline to speculate on how they would rule on specific issues that might come before them. While it may be inappropriate for a judge to take a stance before a particular case has been accepted for review, Kavanaugh should be able to give his views on broader issues like abortion, privacy, presidential power and voting rights, without tying them to individual lawsuits. Without such statements, upcoming confirmation hearings would have little meaning.

History has shown that “conservative” or “liberal” labels for justices can be tricky.  The “conservative” Justice Harry Blackmun wrote the majority opinion on Roe v. Wade, and the late Earl Warren ended up heading the most progressive court majority in modern times, frustrating President Dwight Eisenhower, who named him chief justice.

More recent history lays bare the political machinations behind Supreme Court nominations. In 2016, when President Barack Obama nominated Merrick Garland to the high court, Republicans went full obstructionist, insisting that filling the court vacancy created by the death of Antonin Scalia wait until after the election. This time around, they want to put the process on a fast track, seating a new justice before November. With midterms looming, they shouldn’t be able to have it both ways.

When his nomination does come to the floor, Kavanaugh is entitled to full and fair hearings by the Senate Judiciary Committee and the individual senators who will vote on his nomination. In these times of bitterly divisive hyper-partisanship, it will be challenging to senators on both sides of the aisle to maintain the decorum and seriousness required to decide on a lifetime Supreme Court appointment.

Kavanaugh and the American people deserve a serious deliberative process.  Legitimate concerns about his record need to be part of that process, and we hope that senators do a thorough and fair-minded job in this solemn undertaking. The stakes will outweigh the more fleeting results of the upcoming midterm elections.