Jurisprudence

No More Mr. Nice Justice

Brett Kavanaugh’s kindness and courtesy has no bearing on whether he should be confirmed to the Supreme Court.

Supreme Court nominee Judge Brett Kavanaugh poses for photos as he meets with Montana Sen. Steve Daines on Capitol Hill on July 17.
Supreme Court nominee Judge Brett Kavanaugh poses for photos as he meets with Montana Sen. Steve Daines on Capitol Hill on July 17.
Alex Wroblewski/Getty Images

The fight over the confirmation of Judge Brett Kavanaugh has now reached peak “nice guy.” This is the stage in any judicial confirmation battle (with the exception of the fight over Merrick Garland, who never even got to the “actual human” designation), in which people let us know that, judicial merits notwithstanding, the nominee is a really, really good guy and should be confirmed to a lifetime position on the Supreme Court for that reason.

This phase was launched, in Kavanaugh’s case, with the Carpool Wizard column from a school parent extolling the personal qualities Judge Kavanaugh brought to his kids’ school. It was immediately followed by the Radical Feminist column from Yale’s Amy Chua, about the judge’s graciousness to the offspring of Yale faculty. It reached its apogee with the column in last weekend’s Kind Conservative testimonial by a Supreme Court advocate who will someday practice before him. The presumption throughout has been that the best way to heal the corrosive partisan warfare in the Senate is for Democrats to poke themselves repeatedly in the liver with tiny cocktail forks because, after all, someone has to stand down.

I am not here to pile on to the necessary and sufficient critiques advanced by liberals who don’t believe that niceness and being polite on a panel are the key metrics by which to evaluate the future decider of constitutional liberty. I like Brett Kavanaugh. If niceness-to-me-alone is the sole indicator of judicial qualification then, like the authors above, I’m all in. Kavanaugh has never been anything but kind and courteous to me, personally. Unfortunately, that calculation leaves out millions of nameless, faceless, vulnerable people who don’t often get a chance to write op-eds about the carpool skills and free-floating niceness of Article III jurists.

Niceness is nice. I’d even go so far as to venture that niceness is very, very nice. But it’s not the basis from which to offer someone lifetime tenure on the highest court in the land. And I am still waiting for the Republican appellate lawyers, D.C. lobbyists, and operatives to stand up and tell us how “nice” Judge Garland was. Because I would submit that he was just about equal in “niceness” to Kavanaugh, and yet it mattered not one bit to anyone two years ago, since at that time, niceness was irrelevant. At the very least, then, we should be able to agree that if Garland’s kindness to small animals and assorted D.C. charities was immaterial in 2016, Kavanaugh’s warmth of character should not be an issue in 2018.

The Trump administration wants Kavanaugh’s fitness evaluated by the same standard that the Supreme Court applied in the travel ban case. In Trump v. Hawaii, the court was asked to assess an executive order signed by a president who had campaigned on the promise that he would, if elected, effectuate a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” The court was asked to assess whether Trump’s claims that “Islam hates us” and his reference to the second version of the ban as a “watered down” and “politically correct” retread of the original, might shed any light on the constitutional claim that his ban was rooted in religious animus toward Islam.

Instead of looking directly at the president’s numerous anti-Muslim statements, the majority of the justices, in an opinion penned by Chief Justice John Roberts, looked to the presidency itself, which has historically been used “to espouse the principles of religious freedom and tolerance on which this Nation was founded.” And in light of that lofty history, the court chose not to denounce Trump’s bigoted statements but to “consider not only the statements of a particular President, but also the authority of the Presidency itself.” The court then determined that since the third version of the executive order restricting travel from almost exclusively Muslim countries is neutral on its face, the subjective intention and desires of the president are immaterial. And voila—the president’s grotesque comments had been cleansed of any racial animus such that the majority feels no need to contend with them.

The administration, Senate Majority Leader Mitch McConnell, and Senate Judiciary Committee Chairman Chuck Grassley want the same deferential standard applied to Kavanaugh. Don’t look at the long record he amassed as a member of the prosecutorial team looking into the Clinton presidency, or as staff secretary to the George W. Bush White House evaluating the treatment of Guantanamo detainees, or as a featured speaker on the conservative lecture circuit giving his thoughts on Roe v. Wade. None of these things matter. He’s a nice guy.

Whether Kavanaugh is nice person who treats his law clerks and peers with respect is not irrelevant to the job of being a justice. At most, though, it’s an atomically small factor when compared to the views on law and public policy that will shed light on how Kavanaugh would vote on cases of constitutional importance. So, let’s give Kavanaugh the same searching inquiry that Ruth Bader Ginsburg received in 1993 when the Senate grilled her about her work as the head of the American Civil Liberties Union’s Women’s Rights Project, a law professor, and a federal judge. If Kavanaugh is fit to be a Supreme Court justice then the conversation should be focused on the judgment exhibited throughout his career as a lawyer and a judge, not his carpool etiquette.

Rather than the deep substantive discussion that the moment demands, the treatment of Kavanaugh’s nomination has been dominated by aggrieved demands for civility, decency, and the earnest pinkie swears of the 1 percent. But the person who drove a stake in the heart of whatever remained of civility and decency is the same person who nominated Kavanaugh. This is Trump’s M.O.: to offer neither civility nor decency to anyone who isn’t wealthy and powerful, and then to demand it for himself and those with whom he chooses to associate. By these lights, tearing apart families seeking asylum is civil. Refusing service to Sarah Huckabee Sanders is not. Trashing the media and people of color is civil. Speaking ill of Judge Kavanaugh is not.

So let’s be done with the civility of convenience, which we’ve learned only flows in a single direction and doesn’t apply if you are poor or brown or suffering. If confirmed, Kavanaugh could spend the next four decades on the court. We can’t afford to let the numb deference Trump continues to demand for himself and his allies immunize Kavanuagh’s record from thorough examination just because he’s a lovely guy. Teen asylum-seekers at the border don’t get special solicitude for being sweet people.

Ask any law clerk at the Supreme Court to name the warmest, kindest justice on the bench and they will tell you Clarence Thomas is that guy. Every time. That’s not nothing, but it isn’t anything close to everything. Being lovely to people around you isn’t a proxy for judicial ideology and methodology. Let’s please respect Kavanaugh enough to stop talking about his mad carpooling skills. It’s insulting to him as well as to the rest of us. He is being elevated to a lofty office. Let’s take a page from the Supreme Court and start appreciating the enormity of that office itself. The state of Brett Kavanaugh’s niceness is not a constitutional question.