Back in February, I entered a long note on the two-factor methodology that I believe should govern a Senator’s decision whether to vote to confirm a President’s nominee to the Supreme Court [including edited versions of letters I had previously sent to Sens. Charles Grassley and Tammy Baldwin respectively related to the nominations of Judge Merrick Garland and then-Judge Neil Gorsuch — to which letters, alas, neither Senator paid any heed ;)]. The approach that I believe should be adopted is straightforward: Is the nominee judicially qualified? If so, is there any other objective reason why s/he should not be confirmed (criminal indictment, substantiated drug abuse problem, etc.)? I do not believe that the candidate’s substantive views on any issue should play a role in whether s/he should be confirmed. The Constitution gives the President the power to nominate and appoint federal judges; the Senate should promptly discharge its duty to consent to qualified nominees, and to withhold its consent from those that are not.
As I stated in my letter to Sen. Baldwin, I consider the Senate Republicans’ refusal to promptly hold hearings on Judge Garland’s nomination (and – unless unexpected issues had been uncovered – to have confirmed him) a dereliction of their duty. It frankly grates on me that Senate Republicans flouted by procedural tactic and with partisan malice what I consider their constitutional duty to have fairly and promptly assessed the merits of an apparently qualified nominee put before them (by the way, put before them by a President elected by over 50% of the votes cast, with almost a year left in his term). The Senate Republicans’ actions can be viewed as even that much more galling since Judge Garland was in effect replaced on the Court by a judge (albeit indisputably qualified) of a different philosophy nominated by a President who, while validly elected, didn’t even receive the most votes cast – let alone 50%.
Having vented my spleen at the disreputable behavior of Senate Republicans toward Judge Garland’s nomination (for what I would wager will not be the last time), I would assert that any citizen that claims respect for our system and belief in fair play doesn’t get to pick and choose when s/he supports those principles. Our constitutional officers and we as a people need to stop answering one partisan act with another. Assuming that Judge Brett Kavanaugh is as qualified a jurist as early accounts make it appear, I would if a Senator vote to confirm him to the United States Supreme Court unless some other objective reason (of the type noted above) indicating his unfitness surfaces during the Senate confirmation process. Those that espouse the need to have respect for our processes … should respect those processes. We have the President we have, and he has lawfully exercised his power to make the nomination he has made.
3 thoughts on “Initial Reactions to the Kavanaugh Nomination”
Jim, interesting post. I will take issue with only one item: You made a point of whether the president received 50% of the vote as if that made his election and thus his SCOTUS picks somehow more “valid”. It’s undisputed Mr. Obama had more than 50% of the vote and Mr. Trump did not. However, under our system, that doesn’t create legitimacy. Winning the most electoral votes creates legitimacy. I believe President Clinton did not win 50% of the vote in either of his two election victories. That did not make him somehow illegitimate. I did not vote for Mr. Trump. Nevertheless, according to the rules, he won. The fact he didn’t get 50% doesn’t make his SCOTUS pick any less legitimate.
Hey — this is the first time that I’m responding to a comment [because I’ve just figured out how ;)]. I agree with the substance of your comment; the point I was trying to make — probably inartfully — was that President Obama’s nomination of Judge Garland was no LESS legitimate than President Trump’s, coming as it did with almost a year left in Mr. Obama’s term; nonetheless, the Republican Senators, by refusing to even hold hearings on Judge Garland, were willing to thwart what was the will of the American people as expressed in 2012. I clearly retain a sense of pique which I have not yet resolved :). Have a great day!
Jim, I agree with that point. There should have been hearing and vote on Garland. As President Obama said: “ Elections have consequences”, one of which is the president gets to nominate SCOTUS justices. The Republicans screamed about Obama not carrying out executive duties, yet the Senate just failed to carry out a legislative function. Hypocrisy.