A Supreme Court Seat Should Not Be Campaigned For
On October 6, 2018, the Senate voted to confirm Brett M. Kavanaugh as the newest Associate Justice of the Supreme Court following an extremely controversial confirmation process. The serious allegations of sexual assault against Kavanaugh will inevitably cast doubt on his lifetime tenure on the Supreme Court. In this piece, I want to highlight a lesser publicized aspect of Kavanaugh’s confirmation that will also be highly detrimental to the current and future institutional legitimacy of the Supreme Court: Brett Kavanaugh actively campaigned for his own confirmation and should have been disqualified for that reason.
On Monday, September 24, Kavanaugh appeared on Fox News to defend his name and demand a fair confirmation process. A Supreme Court nominee appearing in a cable news interview is a completely unprecedented action, and for good reason. Nominees go out of their way not to speak to the press knowing that it would politicize a confirmation process that is supposed to be seen as outside of the political fray. Without any enforcement power of its own, the Supreme Court relies on public faith to maintain its status as the ultimate interpreter of the Constitution and all laws made under its authority. The institutional legitimacy of the Supreme Court is founded in the belief that justices are interpreters of law, not simply politicians in robes advancing partisan policy preferences. Politicians can conduct televised interviews in the face of scandal to appeal to the public as they are directly responsible to the public. Supreme Court nominees should not appeal to the public in this way because doing so erodes the legitimacy of the Court by making confirmation hearings look more like an election than an appointment.
Kavanaugh’s choice of venue, Fox News, only worsened the optics of his campaigning. To sit down for an interview with a conservative-leaning network with close ties to the Republican Party and the current administration reveals the political calculus behind it. The interview was not simply about defending himself against allegations of sexual assault. Kavanaugh would have the opportunity to share his side of the story in the Senate Judiciary Committee hearings only three days after the interview aired. This was clearly a public-relations effort to fire up conservative support ahead of the hearing in the face of polls indicating that he was becoming less popular among the American public. Kavanaugh campaigned for himself in a direct appeal to conservative Americans as a way to put pressure on key Republican senators to vote yes.
In his testimony at the hearing addressing Dr. Christine Blasey Ford’s allegations, Kavanaugh changed his tone from the Fox News interview in which he requested a “fair process” to a more aggressive and partisan defense. In his opening statement, he said, “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.” These comments further call into question Kavanaugh’s impartiality. Throughout the confirmation process, Kavanaugh inserted himself directly into the political battle rather than simply denying the allegations against him and letting Republican politicians hurl accusations of a left-wing take down.
Kavanaugh’s comments furthermore fly in the face of his opening statement on the first day of confirmation hearings in which he said, “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent…A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” Even if Kavanaugh personally believed that the left released the allegations to derail his confirmation, Supreme Court nominees must relinquish their ability to make political statements for or against any party because they are now the highest “neutral and impartial arbiters” in the nation.
In 2016, Justice Ruth Bader Ginsburg made disparaging comments to the media about then-presidential candidate Donald Trump and rightly met massive criticism. She was forced to make an apology issued by the Court stating, “Judges should avoid commenting on a candidate for public office,” and admitted that her remarks were “ill advised.” Expressing regret, she stated, “In the future I will be more circumspect.” Kavanaugh also reacted to criticism of his partisan comments in the hearing. Yet again Kavanaugh turned to the press and penned an op-ed in The Wall Street Journal titled, “I am an Independent, Impartial Judge.” Although he did not actually apologize for his comments, he recognized that “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.” However, the damage had already been done. Contrary to what Kavanaugh’s tone in the hearings suggested, no one is entitled to a position on the Supreme Court. Republicans have a majority in the Senate and could plausibly nominate a host of other conservative judges; why push Kavanaugh through at the expense of the Court’s institutional legitimacy? Other Republican Senators would have done well in following Senator Lisa Murkowski of Alaska, who refrained from voting ‘yes’ due to concern for the “credibility and integrity of our institutions.”
I’m sure that those most concerned with the consequences of Kavanaugh’s confirmation process are the other eight justices of the Supreme Court. Chief Justice John Roberts spoke at the University of Minnesota Law School where he addressed the issue. He chose to highlight comments from Kavanaugh’s initial opening statement that were later repeated in the WSJ op-ed stating, “It's a small thing, perhaps, but it is a repeated reminder that, as our newest colleague put it, we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation." Chief Justice Roberts reinforces the need for the judiciary to be outside of the political arena—a more difficult argument to make after Kavanaugh thrust himself into the political fight over his confirmation with a televised interview and sharply partisan comments in the hearing. Kavanaugh’s behavior exposed the noble lie necessary in a system of government that provides nine unelected judges immense power: that Supreme Court justices are apolitical and impartial actors simply interpreting the letter of the law.
(Overhead photo: Judge Kavanaugh sits for an interview with Fox News. Credit: Jacquelyn Martin/AP/REX Shutterstock)