Friday, October 05, 2018

A Team of Nine, Not a Team of One

Gerard N. Magliocca

With the vote on Judge Kavanaugh's nomination looming, I thought I'd lay out my views. Prior to Dr. Ford's allegations, I was in favor of confirmation. I have changed my mind.

The first thing worth noting is that I have favored every Supreme Court nomination made since I became a law professor in 2001 save one--Harriet Miers. Thus, I don't care if a nominee is a liberal or a conservative, or whether he or she supports Roe v. Wade. The issue for me is whether the nominee will be good for the Supreme Court as an institution.

Why did I oppose Harriet Miers? The answer is that after reading her writings and considering her experience, I concluded that her confirmation would hurt the Court by lowering the quality of its work. She did not receive a fair process. She never got a hearing; a fact many people conveniently ignore now. Evidently President Bush and the Senate did not consider that unfairness relevant. I mention this because I think whether Judge Kavanaugh was treated fairly or not is beside the point.

I am willing to give Judge Kavanaugh every benefit of the doubt. Let's say he's innocent. Let's say that his testimony was strained by the stress of being wrongfully accused. His confirmation, though, will hurt the Court. The fact that he felt compelled to write an op-ed yesterday saying that he would be an impartial judge is a problem. As Stephen Bainbridge pointed out last night, it's like President Nixon having to say that he was not a crook. A substantial percentage of Americans will believe that Judge Kavanaugh is not impartial, and a substantial percentage will believe he assaulted Dr. Ford.

Judge's Kavanaugh's confirmation will damage the Court in concrete ways. I am not just concerned that people will "lose faith" in the Court in some abstract sense. As I mentioned in a prior post, there is a good chance that the House Judiciary Committee will initiate an impeachment inquiry against the Justice next year. This investigation will, under the standard set forth by Justice Fortas that I quoted in another previous post, put great and unnecessary stress on Justice Kavanaugh and on the Court's work. There will also many recusal motions filed against the Justice, which will create uncertainty in many cases and cast doubt on some of his decisions. And there will be many disruptive protests at oral argument. It's not a pretty picture.

That said, I recognize that Senators make decisions based in part on the views of their constituents, which may be different from mine. Judge Kavanaugh may be confirmed. In that instance, I have to hope that I am wrong. Many Americans were upset that a former member of the Ku Klux Klan was confirmed to the Supreme Court in 1937. Justice Hugo Black then gave a political and not terribly candid defense of himself in a national radio address. And yet he turned out to be one of the greatest Supreme Court Justices, in part because he spent the next thirty-four years repudiating what the Klan stood for in his opinions. Perhaps Judge Kavanaugh will prove his impartiality over many years, and demonstrate that he believes in blind justice rather than blind ambition.


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