Republicans insist that the “left” (nefarious, unidentified, omnipotent) would have gone after any Supreme Court nominee whom President Trump sent to the Senate. Well, the left wasn’t thrilled that Senate Majority Leader Mitch McConnell (R-Ky.) decided to turn the high court into another tribal battlefield — first in denying Judge Merrick Garland a hearing in 2016, and then by ending the filibuster — but no one raised any hint of ethical, temperamental or criminal wrongdoing when Neil M. Gorsuch came up for a vote. Yes, he was a staunch conservative (as was Antonin Scalia), unlikely to color outside the lines of conservative jurisprudence, but he was restrained, respectful and apolitical. (One can be conservative in judicial philosophy and not be a rabid partisan.)
Judge Brett M. Kavanaugh is a different story because he is a different breed of judicial cat: a partisan marinated in the Clinton wars of the 1990s and a George W. Bush administration lawyer who, on two separate matters during his confirmation, tried to soft-pedal his involvement in controversial, politically controversial matters. And, of course, there were the two women who stepped forward with credible, detailed accounts of serious sexual misconduct. In response to the allegations, Kavanaugh tried to play down his drinking habits and provided ludicrous explanations for some of his calendar and yearbook entries.
Then came the vicious partisan rant and the snotty replies to legitimate questions from senators. More than 2,400 law professors, former justice John Paul Stevens and a wide array of litigants recoiled. How in the world could Kavanaugh ever present himself as an impartial judge? Kavanaugh not only took off the mask of neutrality but also stomped all over it, leaving no doubt as to his partisan loyalties. Coupled with misstating evidence and getting spared from any FBI questioning, he presented himself as a slippery political operator more suitable to work at the Republican National Committee (or Fox News, but I repeat myself) than at the Supreme Court.
Desperate to repair his reputation, he has now written — again, unprecedented — an op-ed in the Wall Street Journal to try to clean up the shabby but telling performance in which he showed his partisan stripes:
My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me. At times, my testimony — both in my opening statement and in response to questions — reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.
I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.
Remember, his screed was not a spontaneous outburst, but rather was written out in advance. He put some thought and effort into that diatribe. His op-ed doesn’t explain where he came up with the left-wing-cabal accusation, nor does he explain why he was belligerent and rude to senators. He doesn’t take back his threat (“What goes around comes around”) nor actually apologize. Coming a week after the hearing, only when concerns about temperament are at the forefront, this apologia reads like a slightly anxious White House press release.
It is only fitting that Kavanaugh’s last-minute plea should appear in the Wall Street Journal, whose editorial page has been wildly rooting for his confirmation. (He also chose Fox News, the equivalent of state TV, for an earlier appearance with his wife in which he tried to blunt opposition to his nomination. What’s next — talk radio? A Breitbart interview?) This latest, distinctly non-judicial public relations move only underscores how big a problem his overt partisanship has become and how it will taint him and the Supreme Court if he is confirmed.
Ultimately, opposition to Kavanaugh’s confirmation comes down to Christine Blasey Ford’s entirely credible testimony, a blatantly slipshod investigation seemingly designed to allow him to hop over holes in his testimony, deep concern over the message that his elevation would send to victims of sex crimes (we won’t seriously investigate your claims; instead we’ll mock you), and the partisan cloud that will descend over the Supreme Court if Kavanaugh joins the bench. Collectively, these should keep him off the court, in our view.
Had Trump been able to clone Gorsuch and send him up to fill the seat of retired justice Anthony M. Kennedy, we’d be exactly where we were back then — united Republicans and a few red-state Democrats combining to confirm him (54 to 45). Gorsuch’s patience and self-control were evident during his confirmation hearing. No one feared that Gorsuch would bring disrepute to the court, nor that he would cast doubt on the legitimacy of 5-to-4 opinions. He has been more dismissive of precedent than one might have thought, but he’s a perfect example of the adage that elections have consequences.
Kavanaugh is different from any other Supreme Court nominee in recent history. Judge Robert H. Bork was more extreme (or more honest) in his judicial philosophy, but no one accused him of giving less-than-forthright testimony; there was no hint of private impropriety. Harriet Miers was intellectually ill-prepared but was never accused of personal misconduct. No other nominee has accused one political party of conducting a campaign of vengeance against him or her.
Indeed, no judge has gotten to the highest court with the baggage that Kavanaugh totes. His shredded credibility and overt partisanship should have counseled for a substitute pick weeks ago; his unprecedented partisanship will surely sow disrespect for our judiciary for decades. No op-ed is going to clean up that mess.