- By Robert Reich
Yale Law School, from which Supreme Court nominee Brett Kavanaugh got his law degree, issued a statement about him with glowing quotes from professors attesting to his impeccable legal credentials.
The reason Kavanaugh should not be confirmed has nothing to do with his legal credentials. It’s the blatantly partisan process used by Donald Trump and Senate Republicans to put him on the Supreme Court.
The framers of the Constitution understood that Americans would disagree about all manner of things, often passionately. Which is why they came up with a Constitution that’s largely a process for managing our disagreements, so that the losers in any given dispute feel they’ve been treated fairly. That way we all feel bound by the results.
I don’t need to point out to you that we have deep disagreements these days. We’re in one of the most bitter, divisive, partisan eras in living memory. So it’s not enough that a prospective Supreme Court justice have impeccable legal credentials. The person must also be chosen impeccably, so that the public trusts he or she will fairly and impartially interpret the Constitution.
Process matters, now more than ever. If Kavanaugh is confirmed, it will be due to a process that has violated all prevailing norms for how someone should be chosen to be a Supreme Court justice.
Let us count the ways.
First, Senate Majority Leader Mitch McConnell, who wouldn’t recognize a fair process if it fell on him, refused for eight months even to allow the Senate to vote on Merrick Garland, President Barack Obama’s nominee to the Supreme Court. That itself was unprecedented.
Then, last year, on a strict party-line vote, Senate Republicans invoked what had been known as the “nuclear option,” lowering the threshold for ending debate on a Supreme Court nomination from 60 votes to 51 in order to win Senate approval for Trump’s first nominee, Neil Gorsuch.
Now, McConnell is rushing the vote on Kavanaugh with almost no opportunity for Democrats to participate.
Meanwhile, Trump himself is an unindicted co-conspirator in a government criminal case concerning campaign finance violations in the 2016 election. He is also under government investigation for possibly obstructing justice, and for colluding with a foreign power to intrude in the 2016 election on his behalf.
But Senate Republicans are unwilling to delay a vote on Kavanaugh until these cases are resolved.
Some of the issues at stake in these cases are likely to come before Kavanaugh if he joins the court, yet Kavanaugh refuses to agree to recuse himself from deciding on them.
Given all this, can America trust that Kavanaugh will fairly and impartially decide the meaning of the Constitution? Obviously not. The reason McConnell and the Republicans are steamrolling his confirmation, and why Trump nominated him in the first place, is because they know for certain he won’t.
Put aside all the “impeccable credentials” rubbish and you find a fiercely partisan conservative who will further tip the court’s balance along partisan lines.
Tragically, Brett Kavanaugh will further divide us. For this reason alone, he shouldn’t be confirmed.