And why the Senate should vote to keep him off the Supreme Court.
By The Editorial Board– The New York Times
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
The nomination of Brett Kavanaugh to the Supreme Court, as much as any development in the challenging era of Donald Trump, is testing America’s politicians and its civic institutions. Few, so far, have met the test.
Not Republican senators, who, after denying one president his legitimate authority to appoint a justice to the Supreme Court, are now rushing their own nominee through, uninterested in the truth, while weeping crocodile tears about other people’s partisanship.
Not Democratic members of the Senate Judiciary Committee, who tainted the process by bringing forward damaging allegations against Judge Kavanaugh only at the last minute.
Not the F.B.I., which either of its own volition or because of constraints imposed by Republicans failed to interview many of the key witnesses who could speak to the accusations against Judge Kavanaugh.
And not President Trump, to absolutely no one’s surprise.
In this crucible of power politics, of bullying and posturing and rage, no one has been more severely tested than Judge Kavanaugh. If he believes himself innocent of sexual assault — if he is innocent of sexual assault — the test, to him, can only appear monstrous.
Yet unfair as the test might seem to the judge and his supporters, senators who want to preserve the credibility of the Supreme Court cannot now look away from the result: Judge Kavanaugh failed, decisively.
How? First, he gave misleading answers under oath. Judges — particularly Supreme Court justices — must have, and be seen as having, unimpeachable integrity. The knuckleheaded mistakes of a young person — drinking too much, writing offensive things in a high school yearbook — should not in themselves be bars to high office. But deliberately misleading senators about them during a confirmation process has to be. If Judge Kavanaugh will lie about small things, won’t he lie about big ones as well?
Indeed he already has: During the course of his confirmation hearings, he claimed, implausibly, that he was not aware that files he received from a Senate staff member, some labeled “highly confidential” or “intel,” had been stolen from Democratic computers.
Even the small lies, of course, aren’t so small in context, since they relate to drinking or sex and thus prop up his choir-boy-who-indulged-now-and-then defense.
Second, confronted with the accusations against him, Judge Kavanaugh made recourse not to reason and methodical process, but to fury and the rawest partisanship. Judges — particularly Supreme Court justices — must strive to be, and be seen as, above politics. As Judge Kavanaugh said in a 2015 speech, “to be a good judge and a good umpire, it’s important to have the proper demeanor.” He added: “To keep our emotions in check. To be calm amidst the storm. On the bench, to put it in the vernacular, don’t be a jerk.”
Wise words. He wasn’t able to live by them when it mattered. At last week’s hearing, Judge Kavanaugh was a jerk. He spun dark visions of a Democratic conspiracy of vengeance against him. He yelled at Democratic senators, interrupted them frequently, refused to answer questions directly and, at one point, confronted Senator Amy Klobuchar, who had asked him whether he had ever blacked out from drinking.
“I don’t know,” Judge Kavanaugh sneered. “Have you?” This contempt came only moments after Ms. Klobuchar told Judge Kavanaugh about her father’s struggles with alcoholism.
Was Judge Kavanaugh truly out of control, in rage and pain, as he appeared, or had he calculated that a partisan attack would rally President Trump and Republican senators to his side, as it did? (We all know he was capable of a more temperate response to the accusations: He’d demonstrated that just a couple of nights earlier, in his interview with Fox News.) For purposes of Senate confirmation, it shouldn’t matter. Such a lack of self-control, or such open and radical partisanship, ought to be unacceptable in a judge.
And indeed, on Thursday, the retired Justice John Paul Stevens, who was appointed by a Republican president, took the astonishing step of saying that Judge Kavanaugh’s performance before the Judiciary Committee should disqualify him from the court. “Senators should really pay attention to it,” he said.
Judges are human beings, not ideological blank slates, but the American legal system depends on their being fair and open-minded to all who come before them. Judge Kavanaugh failed to show that he can do this, or that he even would want to.
That’s a disappointment, but maybe not a surprise to anyone who knew of his life before he joined the bench. He was a fierce Republican warrior in some of the most politically charged battles of the past two decades — including the investigation that led to President Bill Clinton’s impeachment, in which he sought to expose the most intimate details of Mr. Clinton’s affair with Monica Lewinsky. He also played a role in the most controversial policies of the George W. Bush administration, including the torture of detainees and warrantless wiretapping. (How much of a role we may never learn, since Senate Republicans still refuse to release more than 90 percent of the documents related to Judge Kavanaugh’s work in the Bush administration.)
While many of Judge Kavanaugh’s defenders leapt to exonerate him of sexual assault or excused his rage-bender as understandable, virtually no one has tried to deny his rank partisanship. Yet after last week’s testimony, how could any self-identified Democrat, or leftist, or sexual-assault victim, or anyone who is not identifiable as a Republican, expect to get a fair shake from a Justice Kavanaugh? If he is confirmed, that will pose a profound problem for the court.
It is quite a tribute to Christine Blasey Ford that she has presented the one image of dignity and calm in this howling maelstrom. Dr. Blasey testified last week that a drunken Brett Kavanaugh sexually assaulted her at a 1982 party while they were in high school. Her testimony was credible, and the F.B.I. inquiry was too cursory to substantiate or discredit it. Judge Kavanaugh denies the accusations, and in a court of law — and, we hope, in his life as an American citizen — he is entitled to the presumption of innocence.
He is not, however, entitled to a seat on the Supreme Court. Republican senators have repeatedly said they respected Dr. Blasey and were sympathetic to her; but to vote to confirm Judge Kavanaugh now is to declare that her accusations mean nothing.
Presidents have the prerogative to name Supreme Court justices who reflect their values and views of the Constitution. President Trump has no shortage of highly qualified, very conservative candidates to choose from, if he will look beyond this first, deeply compromised choice.
Some Republicans have warned that if Judge Kavanaugh’s nomination fails, no decent person will ever want to be put up for the Supreme Court again. This, like so much nonsense in recent weeks, is political hysteria. For starters, consider these seven names: Ruth Bader Ginsburg, Stephen Breyer, John Roberts Jr., Samuel Alito Jr., Sonia Sotomayor, Elena Kagan and Neil Gorsuch. All were seated on the court since 1991, the last time a Supreme Court nominee faced credible allegations of sexual misconduct. In that case, Clarence Thomas got the job, even in a Democratic-controlled Senate. Since then, not a single nominee has faced allegations of the sort leveled at Judge Kavanaugh.
The only failed nominations since 1991 both came at the hands of Republicans: President George W. Bush’s choice of Harriet Miers, who Republicans said was unqualified; and President Barack Obama’s pick of Merrick Garland, a respected federal judge whose only disqualification was being named by a Democrat. Republicans refused to even grant Judge Garland a hearing. Meanwhile, if Judge Kavanaugh is confirmed, 15 of the last 19 Supreme Court justices will have been chosen by Republican presidents, and the court has had a Republican-appointed majority for nearly half a century.
The Supreme Court, coequal with Congress and the White House, takes up the most important issues facing the country. Its rulings are often decided by a single vote, and they can affect the lives of hundreds of millions of Americans. Yet the source of the court’s power is not tangible. It holds neither the sword nor the purse, to paraphrase Alexander Hamilton. The court’s legitimacy is founded instead in an act of national faith, of confidence in the integrity and fairness of the justices. It is that confidence that ratifies the court’s decisions as the final word on American law.
That confidence has already been shaken. The court’s party-line vote in Bush v. Gore, which effectively decided the 2000 presidential election, led many Americans to wonder if the justices were nothing but politicians in robes. Sixteen years later, Republicans made the balance of the court more clearly a political prize by blocking Judge Garland.
This confirmation battle has been awful for everyone. It has exposed to the country a depth of partisan grievance and connivance within the Senate that should embarrass and worry every American. It is a terrible reality that, at this point, either confirmation or rejection of Judge Kavanaugh’s nomination by a narrow and overwhelmingly partisan margin will dismay and anger millions of Americans. But only by voting no, by asking Mr. Trump to send someone else for it to consider, can the Senate pass its test of institutional character and meet its obligation to safeguard the credibility of the Supreme Court.
A version of this article appears in print on Oct. 5, 2018, on Page A28 of the New York edition with the headline: A Test of Mr. Kavanaugh, and America