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Brett Kavanaugh
Sep. 18th, 2018 08:51 amThere are a number of reasons people oppose Brett Kavanaugh's confirmation to the Supreme Court, some better than others.
The one getting the news at present is an allegation of sexual assault when he and the alleged victim were both in high school. I expect that (a) the allegation is true, (b) it won't stop his confirmation, and (c) it shouldn't stop his confirmation. I mean, high school fergoshsakes! High school kids are trying to learn a new set of social rules while drowning in unfamiliar hormones, desperately trying to look "adult" while being bombarded with unrealistic entertainment-media portrayals of how "adults" behave. I bet that at least a quarter of today's fifty-somethings did something in high school at least as bad as what Kavanaugh is alleged to have done, and I don't think it should disqualify them from positions of trust unless the behavior continued. (Clarence Thomas was a different situation: that involved multiple women, when he was not only an adult but in a position of professional power over those women, and it should most definitely have disqualified him from a seat on the Supreme Court.)
Of course, Kavanaugh (like Thomas) says it never happened. Indeed, some time this week he'll have the opportunity to say under oath that it never happened... which raises the question of his other statements-under-oath that appear not to have been true, statements about his participation in political initiatives in the 1990's and 2000's. That's actually a more serious objection to confirming a Justice than the sexual-assault allegation itself. The sexual-assault allegation, if true, tells us something about who Kavanaugh was when drunk forty years ago; lying about it under oath tells us something about who he is on his best behavior now. And what's the point of holding hearings and asking the nominee about his views over time if he's going to baldly lie about them?
Another objection is that he'll vote to further restrict abortion, further restrict voting rights, further restrict unions, further restrict the ability of government to regulate private businesses, etc. These are all causes for concern, but they're only what you expect from a Republican President and a Republican Senate (when minority tools such as blue-slips and filibusters have been disabled). They're a partisan reason to oppose his confirmation, not a principled reason to oppose his confirmation, and Trump will rightly point that out (even a stopped clock is right twice a day).
To me, the strongest and most principled objection to Kavanaugh is that he, with a published record opposing the indictability of sitting Presidents and generally supporting a broad view of executive privilege, was nominated by a President who has himself been under serious investigation since long before the nomination, and will almost certainly be subject to criminal charges sooner or later. I don't expect Kavanaugh to change his sincerely long-held judicial views, and I don't expect him to say in his nomination hearings how he would rule on these issues, nor to recuse himself on those issues forever, but I do expect him, as a matter of basic judicial ethics, to promise to recuse himself from decisions on the subpoena-ability, indictability, self-pardonability, and criminal liability of the President who nominated him. I think if he continues not to do that, every member of the Senate should assume that he was nominated in order to protect that President, and whatever other qualifications he may have for the job were secondary considerations. (Incidentally, I would love to see the President's tweetstorm the morning after such a promise is made!)
The one getting the news at present is an allegation of sexual assault when he and the alleged victim were both in high school. I expect that (a) the allegation is true, (b) it won't stop his confirmation, and (c) it shouldn't stop his confirmation. I mean, high school fergoshsakes! High school kids are trying to learn a new set of social rules while drowning in unfamiliar hormones, desperately trying to look "adult" while being bombarded with unrealistic entertainment-media portrayals of how "adults" behave. I bet that at least a quarter of today's fifty-somethings did something in high school at least as bad as what Kavanaugh is alleged to have done, and I don't think it should disqualify them from positions of trust unless the behavior continued. (Clarence Thomas was a different situation: that involved multiple women, when he was not only an adult but in a position of professional power over those women, and it should most definitely have disqualified him from a seat on the Supreme Court.)
Of course, Kavanaugh (like Thomas) says it never happened. Indeed, some time this week he'll have the opportunity to say under oath that it never happened... which raises the question of his other statements-under-oath that appear not to have been true, statements about his participation in political initiatives in the 1990's and 2000's. That's actually a more serious objection to confirming a Justice than the sexual-assault allegation itself. The sexual-assault allegation, if true, tells us something about who Kavanaugh was when drunk forty years ago; lying about it under oath tells us something about who he is on his best behavior now. And what's the point of holding hearings and asking the nominee about his views over time if he's going to baldly lie about them?
Another objection is that he'll vote to further restrict abortion, further restrict voting rights, further restrict unions, further restrict the ability of government to regulate private businesses, etc. These are all causes for concern, but they're only what you expect from a Republican President and a Republican Senate (when minority tools such as blue-slips and filibusters have been disabled). They're a partisan reason to oppose his confirmation, not a principled reason to oppose his confirmation, and Trump will rightly point that out (even a stopped clock is right twice a day).
To me, the strongest and most principled objection to Kavanaugh is that he, with a published record opposing the indictability of sitting Presidents and generally supporting a broad view of executive privilege, was nominated by a President who has himself been under serious investigation since long before the nomination, and will almost certainly be subject to criminal charges sooner or later. I don't expect Kavanaugh to change his sincerely long-held judicial views, and I don't expect him to say in his nomination hearings how he would rule on these issues, nor to recuse himself on those issues forever, but I do expect him, as a matter of basic judicial ethics, to promise to recuse himself from decisions on the subpoena-ability, indictability, self-pardonability, and criminal liability of the President who nominated him. I think if he continues not to do that, every member of the Senate should assume that he was nominated in order to protect that President, and whatever other qualifications he may have for the job were secondary considerations. (Incidentally, I would love to see the President's tweetstorm the morning after such a promise is made!)
