The “Liberal Case” for Brett Kavanaugh Is a Bunch of Horseshit
Yale Law School professor Akhil Amar is one of the nation's most prolific constitutional scholars, revered throughout the legal academy for the deep understanding of American history that he weaves into his clear, concise brand of analysis. Judging by his latest New York Times op-ed, "A Liberal's Case for Brett Kavanaugh," he has also spent the past two decades of his life living in a remote mountain cave in which strange acoustical quirks prevent the words "Mitch McConnell" or "the modern Republican Party" from being perceived by the human ear.
Calling the decision Donald Trump's "finest hour" and "classiest move," Amar—who, he generously notes in a parenthetical, taught Kavanaugh at Yale—makes an 800-word case for his former student that somehow does not once mention the implications that Kavanaugh's confirmation could have for the American public. Here are, as far as I can tell, the components of the "liberal's case" for adding to the Supreme Court a 53-year-old judge who sits a shade to the left of Clarence Thomas on the ideological spectrum:
1. He fulfills the basic job duties of a judge.
Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues.
2. His current job is prestigious, and his peers like him.
He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.
3. Previous Supreme Court opinions have, to a certain extent, incorporated elements of his reasoning in their decisions.
Several of Judge Kavanaugh’s most important ideas and arguments—such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants—have found their way into Supreme Court opinions.
4. His clerks have clerked on the Supreme Court.
Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.
5. He enjoys books and teaches classes.
Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum.
6. He meets or exceeds Amar's subjective expectations for how an "originalist" judge should act.
[A]n “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.
Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.
7. Some of his ideas have evolved over time.
A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer—including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr—were erroneous.
That's it! Amar does not mention, for example, Kavanaugh's history of pro–Second Amendment jurisprudence, or his barely-disguised animosity toward Roe v. Wade, or the detail that Kavanaugh's abandonment of the view that a sitting president can be indicted just happened to coincide with the end of his tenure as a Whitewater prosecutor—all of which are things readers might be interested in! This "liberal's case" is, in fact, a series of highfalutin bromides that only reinforce the notion that the Supreme Court is an institution in which players prioritize comity and civility over the real-world implications of its work.
From there, Amar launches into a baffling West Wing fever dream, arguing that Senate Democrats, with no procedural mechanisms available to them to block Kavanaugh's confirmation, should offer their Republican counterparts a modest proposal.
Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation—or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.
"Fair" questions, he goes on to specify, would include ones about Kavanaugh's personal views on Roe—an issue that, in the inane song-and-dance that is the modern Supreme Court confirmation process, recent nominees have bent over backwards not to address in public.
Set aside, for a moment, the implicit assumption that Mitch McConnell is a reasonable person who would happily set aside his agenda in the pursuit of bipartisan compromise, and that he would ever in one million years consider ceding an inch to a minority party that is powerless to stop him from doing what he wants. This is an incredible statement: Because Kavanaugh is, in Amar's estimation, a smart and nice person, all Senate Democrats should support his candidacy, provided that he adheres to some nebulous standard of "honesty" in his answers, regardless of their substance.
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Amar does not go so far as to hold Kavanaugh to any sort of prospective standard based on his performance in these hypothetical hearings. That would be absurd! "In the future," he notes, Kavanaugh "would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders." As long as the confirmation process has the appearance of transparency, argues noted liberal Akhil Amar, how Kavanaugh rules from the bench is irrelevant.
This line of reasoning is the product of the legal community's dogged fetishization of the role of the federal judiciary, and especially of the nine individuals who sit on the Supreme Court, in American democracy. Politics, to these people, is a zero-sum game played by unapologetic ideologues who come and go on the whims of voters. Judges, however, remain scrupulously above the fray, serving as neutral arbiters who enforce law as it is written instead of the way they, in their private lives, think it ought to be. The Founding Fathers envisioned legislators as stewards of the people, but created judges to serve as stewards of the Constitution itself.
It is a nice idea. In 2018, it also has no basis in reality. Brett Kavanaugh is a Republican operative who spent years of his life working to impeach a Democratic president. Like Neil Gorsuch before him, he was plucked from a 25-person list of potential justices authored by the Federalist Society, a conservative legal organization to which the Trump White House has outsourced its nomination process. The identity of the person who would replace Justice Scalia was so important to McConnell that he decided to hold that seat open for nearly a year. It never even occurred to him whether Merrick Garland would be a "fair" jurist, or whether other judges liked him, or whether he read enough important-sounding books. Mitch McConnell wanted a Republican pick, and he got his wish.
The conservative movement has spent decades treating the judiciary as a partisan entity, taking full advantage of their opponents' antiquated notion that judges are inherently evenhanded people for whom policy outcomes are irrelevant. Their reward is a federal bench stocked with conservative stalwarts, and as long as people like Amar keep pretending the institution is something it isn't, this strategy will continue to pay off.
