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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, July 13, 2018

Hemel's Advice To Democrats On Kavanaugh's Nomination

From Tax Prof Daniel Hemel (Chicago):
Give Kavanaugh a Chance:

Several Democratic senators already have said that they will oppose Judge Brett Kavanaugh’s nomination to the Supreme Court seat that Justice Anthony Kennedy is vacating (here are statements from Richard BlumenthalKirsten GillibrandKamala HarrisBernie SandersChuck Schumer, and Ron Wyden). This strikes me as a grave mistake — normatively and strategically. Kudos to Democrats — including Sherrod BrownJoe DonnellyHeidi Heitkamp, and Joe Manchin — who have resisted the rush to judgment.

Brett Kavanaugh is a conservative. That should not be disqualifying. Republican presidents generally will nominate conservatives to the Court, and Democratic presidents generally will nominate liberals. Senators of the opposite party should insist upon well-qualified nominees who fall within the mainstream of American legal thought — not extreme ideologues. Judge Kavanaugh is well qualified by any measure, and his views are much closer to the center than those of many of his former and current Republican-appointed colleagues on the D.C. Circuit. ...

Judge Kavanaugh, moreover, is about the best that we liberals could hope for. Yes, he is a conservative, but as far as conservatives go, he is a judicial minimalist. ...

[S]trategically, what comes of our opposition to Judge Kavanaugh’s confirmation? Will it mobilize the base? Sway undecided voters? Of all the issues that Democrats have to run on in 2018, is this really our strongest one? Let’s run against the Trump administration’s inhumane immigration policies and against congressional Republicans’ refusal to protect Dreamers. Let’s run against the Trump administration’s efforts to take health care away from millions of Americans and against congressional Republicans’ aiding and abetting of those efforts. Let’s run against a tax law that puts multinational corporations ahead of working families and irresponsibly balloons the national debt. Let’s make Stephen Miller, Scott Pruitt, and Jim Jordan our political piñatas. But Brett Kavanaugh? Really? The better move — strategically as well as normatively — would be for Democrats to use the Kavanaugh nomination to show voters what responsible legislating looks like. And that means giving Judge Kavanaugh a fair hearing — potentially even voting to confirm him — rather than declaring our opposition within minutes of his nomination.

Does It Matter That Brett Kavanaugh Is Nice?:

Judge Brett Kavanaugh is a nice guy. That understates the point. As his former clerks (many of whom are registered Democrats) write in a letter to the Senate Judiciary Committee, “He is unfailingly warm and gracious with his colleagues no matter how strongly they disagree about a case, and he is well-liked and respected by judges and lawyers across the ideological spectrum as a result.” I clerked for a different D.C. Circuit judge, but I experienced Judge Kavanaugh’s grace and generosity in small ways too. He made an effort to learn the names of all the clerks for other judges in the courthouse — and to learn something about them as well. (We talked about the race that I was training for then.) He listened to our views on cases. Even after I clerked, he e-mailed me out of the blue with thoughtful comments on a law review articlethat I co-authored, along with suggestions for future research.

Kavanaugh’s grace and generosity are not directed only at D.C. Circuit clerks and law professors. We’ll hear more in the coming weeks about the girls’ basketball teams that Kavanaugh coaches and the elementary school students whom he tutors. And I expect that we’ll hear from many more people whom Kavanaugh has helped in much more profound ways than, e.g., offering tips about how best to approach the Boston Marathon’s Heartbreak Hill. ...

[N]iceness — and more broadly, the moral qualities distinctive to an individual (what we might call “character”) — should matter, for at least five reasons: ...

Niceness is not all that matters in a Supreme Court justice. Senators will likely learn more about Judge Kavanaugh’s views from his Bush administration e-mails, and maybe (though doubtfully) from his testimony in front of the Judiciary Committee. They (or their staffers) will pour over the hundreds of opinions that he has written as a D.C. Circuit judge and the law review articles he has published. If we learn (to use an unlikely hypothetical) that he has secretly committed himself to overruling Roe v. Wade, then all the niceness in the world shouldn’t save his confirmation. But Judge Kavanaugh’s niceness — as evidenced by his interactions with colleagues and clerks, with his daughters’ basketball team and his elementary school mentees, and with hundreds of others — should matter in the confirmation process as more than an afterthought.

Legal Education | Permalink


wut is normatively 

Posted by: Anon | Jul 13, 2018 7:10:18 AM

Hemel is a logical, thoughtful person and will therefore be largely irrelevant to the debate.

Posted by: Michael Livingston | Jul 15, 2018 3:39:48 AM