At his first confirmation hearing before the Senate Judiciary Committee, Brett Kavanaugh said that “a good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.”
At his final one, he told the Democratic members of the panel that their behavior was “embarrassing”; suggested that they knew Christine Blasey Ford’s sexual-assault allegations against him were spurious, and were only feigning concern about her now because “you couldn’t take me out on the merits”; declared the entire investigation into his alleged sexual misconduct “a calculated and orchestrated political hit” fueled by “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups”; and warned his political rivals that, “What goes around comes around.”
Now, Kavanaugh wants you to know that he is “an independent, impartial judge” again. In an op-ed for The Wall Street Journal Thursday night, the Supreme Court nominee reiterated his belief in the vital importance of judicial neutrality — and (sort of) apologized for saying (unspecified) things that he shouldn’t have in his final appearance before the Senate:
I was very emotional last Thursday, more so than I have ever been. 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. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.
Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.
Here is a rough summary of what Brett Kavanaugh is, ostensibly, asking you to believe: Christine Blasey Ford is an exceptionally gifted (and exceptionally sociopathic) amateur actress — or else, a person suffering from a severe memory disorder — who wrongly accused him of a serious crime. This false allegation caused the Supreme Court nominee to lose control of his emotions, and, in a fit of frustrated anger, to write a (carefully proofread and copyedited) opening statement to the Senate that was full of wholly unsubstantiated claims about the vast, left-wing conspiracy against him. But this hyperpartisan tantrum was an aberration, one entirely out of step with his long, distinguished career (as a Republican operative, turned George W. Bush aide, turned right-wing federal judge). When he isn’t being accused of a crime he did not commit, he will treat Democratic arguments with the utmost intellectual charity (heck, he might even be willing to entertain bizarre premises like “when a Democrat expresses concern about a sworn allegation of sexual assault against me, that is not dispositive evidence that George Soros has paid her to destroy my career by any means necessary”). He will be an independent, impartial judge — and definitely will not work to ensure that “what goes around comes around.”
Perhaps this account strikes you as a plausible. But there is an alternative theory: Brett Kavanaugh is an opportunistic, partisan judge who will say whatever he needs to in order to win confirmation to the Supreme Court — and once there, will reason however he needs to in order to arrive at the conclusions the conservative movement prefers.
In this view, Kavanaugh’s public presentation has not been erratic — decorous and detached one day, unhinged and partisan the next — so much as consistently, ruthlessly calibrated to the political needs of the given moment.
So, when Donald Trump introduced Kavanaugh as his Supreme Court nominee in July, the judge immediately told a blatant falsehood to further ingratiate himself with this president and his followers, declaring that “no president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination.” (Every judge the president considered had a background in the Federalist Society, a staunchly conservative legal network that advises Trump on all his judicial appointments.)
Then, when he first appeared before the Senate — and the primary obstacle to his confirmation was the unusually partisan nature of his résumé — he sang paeons to judicial impartiality, and recited innocuous nonsense phrases like, “I am a pro-law judge.”
When Ford’s allegation came to light, he denied in it in categorical terms (even though, deep down, he couldn’t be certain that her story wasn’t true, given his drinking habits at the time in question). Recognizing that demonizing a self-avowed sexual-assault survivor came with political hazards, he suggested to aides and advisers that Ford might have simply misidentified her true assailant. Once that theory flopped, and Ford actually showed up for her hearing, the primary threat to his nomination became the other equally conservative (but now, far less tainted) federal judges waiting in the wings. Thus, Kavanaugh decided he needed to give the Republican base a reason to insist on his nomination, and not merely that of a far-right judge like him. So, he campaigned for the position on Fox News, and then announced that anyone who opposed his nomination was complicit in a Clintonian conspiracy before the Senate. And when Democratic senators proceeded to ask him questions whose true answers were politically disadvantageous, he simply lied; when he wished to make Ford’s allegation look ridiculous, he declared that “all four witnesses have said it didn’t happen,” even though they had not said that, at all.
Now, with the GOP faithful firmly in his corner — and a couple squishy Republican senators voicing concerns about his partisanship — he has told them what they want to believe in the pages of The Wall Street Journal.
And while Kavanaugh insists in said pages that his recent actions aren’t characteristic of his jurisprudence, his record suggests otherwise. Specifically, in many of his rulings, the judge has demonstrated a similar affinity for using any available expedient to arrive at his preferred outcome. As Vox’s Matt Yglesias has noted:
If you read Kavanaugh’s decisions on cases regarding EPA regulations, you see a judge who poses as a defender of congressional prerogatives over an executive run amok. But if you glance instead at his ruling on a case relating to the Consumer Financial Protection Bureau, you see the opposite.
When creating this agency, Congress decided that the best way to create effective consumer protection would be to grant the agency a good measure of independence from the president — giving the agency a single director (rather than a five-person commission like the SEC or FCC) and giving the director a fixed-term. This, according to Kavanaugh, is unconstitutional because it violates the unitary nature of the executive branch.
So we cannot allow executive agencies to regulate aggressively because that would step on the prerogatives of Congress, but we cannot allow Congress to set up an aggressive regulatory agency because that would step on the prerogatives of the president.
Perhaps most tellingly of all, in an aside on a ruling related to the Affordable Care Act, Kavanaugh suggests that a president could simply choose not to enforce the law’s provisions. The absence of regulation, in other words, is always a permissible form of discretion and deference, whereas its presence is always suspect — with the question of who is supposed to defer to whom tossing like a hot potato according to the nature of the case.
I believe a good blogger must be an umpire — a neutral arbiter who favors no political party, litigant, or theory of Brett Kavanaugh’s behavior. So I will leave it to you, the independent, impartial reader, to decide what kind of Supreme Court justice he is most likely to be.