Brett Kavanaugh; Donald Trump (Getty/Salon)

Robert Reich: Why Kavanaugh should not be confirmed

Tragically, Brett Kavanaugh will further divide us. For this reason alone, he shouldn’t be confirmed


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Robert Reich
September 15, 2018 12:59AM (UTC)
This originally appeared on Robert Reich's blog.

Yale Law School, from which Brett Kavanaugh got his law degree, issued a statement about him with glowing quotes from professors attesting to his impeccable legal credentials.

Perhaps the Yale Law faculty deemed his credentials impeccable because he graduated from Yale Law School. Then again, Clarence Thomas also graduated from Yale Law School (as, in full disclosure, did I).

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The reason Kavanaugh should not be confirmed has nothing to do with his legal credentials. It’s the blatantly partisan process used by Trump and Senate Republicans to put him on the Supreme Court.

The framers of the Constitution understood that Americans would disagree about all manner of things, often passionately.

Which is why they came up with a Constitution that’s largely a process for managing our disagreements, so that the losers in any given dispute feel they’ve been treated fairly. That way, we all feel bound by the results.

I don’t need to point out to you that we have deep disagreements these days. We’re in one of the most bitter, divisive, partisan eras in living memory.

So it’s not enough that a prospective Supreme Court justice have impeccable legal credentials. The person must also be chosen impeccably, so that the public trusts he or she will fairly and impartially interpret the Constitution.

Process matters, now so more than ever.

If Kavanaugh is confirmed, it will be due to a process that has violated all prevailing norms for how someone should be chosen to be a Supreme Court justice.

Let us count the ways.

First, Mitch McConnell, the majority leader of the Senate — who wouldn’t recognize a fair process if it fell on him – refused for eight months even to allow the Senate to vote on Merrick Garland, President Barack Obama’s nominee to the Supreme Court. That itself was unprecedented.

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Then last year, on a strict party-line vote, Senate Republicans invoked what had been known as the “nuclear option,” lowering the threshold for ending debate on a Supreme Court nomination to fifty-one votes from sixty, in order to win Senate approval for Trump’s first nominee, Neil Gorsuch.

Now McConnell is rushing the vote on Kavanaugh with almost no opportunity for Democrats to participate.

The Trump administration has asserted executive privilege to shield 100,000 page of Kavanaugh’s White House records from release — an assertion so broad that senators can’t even read behind closed doors documents that might shed light on issues the public might reasonably consider important, such as whether Kavanaugh endorsed the Bush administration’s infamous torture memos.

And rather than rely on the National Archives for documents relating to Kavanaugh’s record, Republicans are having political partisans sift through them — which a National Archives official describes as “something that has never happened before.”

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Meanwhile, Trump himself is an unindicted co-conspirator in a government criminal case concerning campaign finance violations in the 2016 election. He is also under government investigation for possibly obstructing justice, and for colluding with a foreign power to intrude in the 2016 election on his behalf.

But Senate Republicans are unwilling to delay a vote on Kavanaugh until these cases are resolved.

Some of the issues at stake in these cases are likely to come before Kavanaugh if he joins the Court, yet Kavanaugh refuses to agree to recuse himself from deciding on them.

Finally, many of the jobs Kavanaugh held over the last quarter century required not scholarly legal credentials but, rather, a willingness to act as legal hatchet-man in some of the most divisive issues the nation faced over those years.

Kavanaugh helped devise the strategy to impeach Bill Clinton, and went on to help George W. Bush wage war in Iraq.

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Given all this, can America trust that Kavanaugh will fairly and impartially decide the meaning of the Constitution? Obviously not.

The reason McConnell and Republicans are steamrolling his confirmation, and why Trump nominated him in the first place, is because they know for certain he won’t.

Put aside all the “impeccable credential” rubbish and you find a fiercely partisan conservative who will further tip the court’s balance along partisan lines.

Senate deliberation over him is a charade. Everybody on the inside knows what’s going on here. And almost everyone watching from the sidelines does, too.

All of which is especially damaging to the Supreme Court and to the nation at this intensely fractious point in history.

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When a sitting president spews venom daily, and when Congress has become a cauldron of bitter partisanship, American needs a Supreme Court that can be trusted to fairly manage our national disagreements. The Constitution demands no less.

Tragically, Brett Kavanaugh will further divide us. For this reason alone, he shouldn’t be confirmed.

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Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies. He served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written 15 books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good." He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's also co-creator of the Netflix original documentary "Saving Capitalism."

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