Brett Kavanaugh is an ideological conservative who will likely provide a fifth vote to hollow out American abortion rights and let powerful corporations run amok. And yet, left-leaning Yale Law professor Akhil Reed Amar thinks that Democrats ought to support him. In a New York Times op-ed published just after Trump announced Kavanaugh’s nomination in prime time, Amar—who assures readers he “strongly supported Hillary Clinton” during the 2016 election—argues that his former student is an impeccably credentialed scholar of legal history and “a superb nominee” who deserves “ninetysomething votes.”
These sorts of op-eds, where an elite member of America’s legal profession finds an excuse to sing the praises of a Supreme Court nominee from the opposing party—who also happens to be an elite member of America’s legal profession they know personally—are something of a ritual. After Donald Trump tapped Neil Gorsuch to the high bench, Neal Katyal, who served as acting solicitor general under President Obama, argued in the Times that if Congress was going to confirm anybody, it should be Gorsuch because the judge would “uphold the rule of law.” (The two served together on the Federal Appellate Rules Committee.) Further back, Justice Elena Kagan, a former dean of Harvard Law, enjoyed the backing of conservative faculty such as Charles Fried, more or less because of her Harvard ties, and that she’d been nice to Harvard’s right-wingers.
This tradition may have once made some sense when there was still some fragile agreement about handling Supreme Court nominations in a bipartisan manner. But in the post Merrick Garland era, in which nominations are clearly about pure power politics and little else, a piece like Amar’s at worst reeks of the amoral Ivy League clubbiness that still defines the upper reaches of the legal world and at best is simply naive.
The most cynical reading of a piece like Amar’s is that it’s just another example of how top lawyers and law professors tend to look out for their own out of professional self-interest. There’s lots of back scratching and careerism in the legal world, and perpetuating the idea that going to Harvard or Yale and and doing a stint at a prestigious law firm or White House post qualifies you for the bench regardless of your beliefs is good for Harvard and Yale graduates. Amar might not be consciously thinking in those terms, but that’s the culture of elite law.
But there’s also a more charitable reading. One reason the legal elite tend to back judicial nominees from the other party, as long as they have the right resume, is that they see it as a way of keeping the courts from becoming overly politicized and flooded with incompetent hacks. This view actually makes a lot of sense when it comes to the district courts—the lowest level of the federal judiciary—where judges spend the vast majority of their time overseeing mind-numbing litigation over, say, commercial insurance claims, and conducting criminal trials. (My first journalism job involved covering the district court in Washington, D.C.) Judges must be able to apply past precedent without getting too creative, lest their decisions get reversed on appeal, while churning out a high volume of opinions, so that they can keep the wheels of justice turning. In other words, they need to be legal pros. Basic adroitness and professionalism really are virtues, and a background that includes a Harvard degree, a successful stint in Big Law, or a high-level government job may actually indicate they’re fit for the job. (Then again, so might a less lucrative stint as a public defender.)
The bipartisan consensus about district judges also seems to pay off once in a blue moon. One of Trump’s lower court nominees, Matthew Spencer Petersen, ended up withdrawing his name from consideration after a Senate grilling where he failed to answer basic legal questions, for instance. That suggests there’s still some value in supporting the other party’s nominees on the condition that they meet some baseline level of competence.
When it comes to the Supreme Court justices, though, all of that pretty much goes out the window. For starters, it’s not even clear how much basic legal skill you actually need to do the job—just see Anthony Kennedy’s long paper trail of 10th grade poetry masquerading as jurisprudence. And when highly technical cases do arise, justices can lean on their highly adept clerks, who are often doing the basic legwork of researching and writing opinions anyway. In a lot of cases, a talented lawyer who becomes a justice is just better able to put a scholarly sheen on his politically motivated sophistry, which means there’s even less reason for members of the opposing party to support him. Keeping the high bench stocked with people who went to the right schools and worked in the right government jobs might make it a little less likely that the justices will turn American law into a completely nonsensical morass. But that’s not a really strong reason to lend your support to political operators who will use their gavels to quietly crush most of your ideals.
And that brings us to the bigger issue: A long time ago, there might have been a tenuous bipartisan agreement against overly politicizing the Supreme Court. But it’s been rotting away for years now, and whatever was left of it died the moment Mitch McConnell decided he would not even give Barack Obama’s last nominee a hearing. At this point, voting for the other party’s pick without a really good reason that serves the interests of your own voters is not just a stamp of approval for that individual, but amounts to endorsing the entire game Republicans have decided to play. The fact that Kavanaugh likes to read constitutional history and “has sent more of his law clerks to clerk for the justices of the Supreme Court” than anyone but Garland is not a really good reason. That an esteemed law professor like Amar doesn’t understand that suggests that he’s living in the past.
What might be a good reason for a liberal to support Kavanaugh? The only one I can think of—which Amar never brings up—is that Kavanaugh might have a slightly stronger sense of judicial restraint than some of Trump’s other potential picks, making him a bit less likely to junk Roe v. Wade outright, or strike down another major piece of progressive legislation. In other words, he appears, at least right now, to be a bit more like John Roberts, who allowed Obamacare to stand, than Samuel Alito or Clarence Thomas. If that’s the case, Democrats could have some interest in ensuring his nomination survives, lest someone even more extreme end up on the court instead (after all, it’s possible liberals would be happier today if Harriet Miers were wearing the black robe instead of Alito). But given that Kavanaugh seems likely to sail through the Senate, there’s no reason for Democrats to do anything but protest and make clear that we are witnessing the creation of an arch-conservative court that will likely hamper progressive causes for years to come.
One more thing
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