Editorial: Why Supreme Court nominee Brett Kavanaugh may be more independent than you expect


The San Diego Union-Tribune



In getting to nominate two Supreme Court justices in his first 18 months on the job, President Donald Trump has an opportunity to quickly shape his long-term legacy in a way that many of his predecessors never had. In choosing Brett Kavanaugh — a judge on the Washington, D.C., U.S. Circuit Court of Appeals — to replace retiring Justice Anthony Kennedy, Trump has chosen a deeply experienced nominee with 300 opinions under his belt who appears well within the judicial mainstream.

As Vox observed, Kavanaugh, 53, is “straight out of Supreme Court central casting.” Besides serving for 12 years as a judge on the second most important court in the nation, he served as a clerk for Kennedy and two other federal judges. He worked in the solicitor general’s office under President George H.W. Bush, on special prosecutor Kenneth Starr’s team investigating President Bill Clinton, and as staff secretary to President George W. Bush. A Yale law school graduate, he has taught law students at his alma mater as well as Harvard and Georgetown.

The San Diego Union-Tribune Editorial Board looks forward to coming debates over his history, starting with his opinion in the Seven-Sky v. Holder case, involving the legality of the Affordable Care Act in which Kavanaugh made an unusually specific and reassuring observation. “For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions,” he wrote. “By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.” But Kavanaugh also offered the view that a president can choose not to enforce a law he considers unconstitutional even if the courts disagree — a position fraught with problems.

Nevertheless, barring some revelation in coming weeks, this editorial board is strongly inclined to support Kavanaugh’s nomination. We have consistently backed qualified high court nominees from both Republican and Democratic presidents. Elections have consequences, and presidents deserve deference in choosing justices, Cabinet members and all senior posts requiring Senate confirmation.

Yet our view about supporting qualified Supreme Court nominees who are within the judicial mainstream is increasingly out of the political mainstream. In 1988, Kennedy became the last nominee to win unanimous Senate support. Even though all were highly qualified, the last five Supreme Court nominees considered by the Senate each received at least 22 no votes. In 2016, this partisanship reached an ugly new peak when Senate Majority Leader Mitch McConnell, R-Kentucky, refused to even hold a vote on federal appeals court Judge Merrick Garland, nominated by President Barack Obama after the death of Justice Antonin Scalia.

This background and emotions over abortion and other legal and social issues make a bitter battle over Kavanaugh certain. He seems likely to prevail because of the GOP’sSenate majority and three Democratic senators seeking re-election in states Trump won easily. But for the millions of Americans who don’t want the judiciary to be a politicized battlefield akin to a third branch of Congress, Kavanaugh’s nomination isn’t just about ideology or payback. It’s about protecting the court’s legitimacy at a moment of heavy political rancor. Kavanaugh’s paper trail makes his conservatism indisputable. But we hope he is a conservative more like Kennedy and Chief Justice John Roberts than Scalia.

Kennedy’s belief in individual liberties led him to author landmark liberal decisions as the court’s swing vote. Roberts’ 2012 and 2015 votes upholding the Affordable Care Act on narrow grounds may have inflamed conservatives — especially Scalia — but they reflected a deference to the legislative branch that is in keeping with Kavanaugh’s professed belief in judicial restraint and precedent.

We hope this belief is sincere. American politics has all too many score-settling partisans. The last thing this nation needs is one in a judicial robe.

The San Diego Union-Tribune

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