Democrats are foolish to oppose Judge Brett Kavanaugh’s nomination [1]to the Supreme Court. By miscasting him as a foe of Roe v. Wade [2](1973), consumer rights,[3] and a healthy environment,[4] they do the truth a disservice and will hurt themselves in November.
Before Anthony Kennedy’s retirement, the court was divided into three groups [5]— Justices Clarence Thomas, Samuel Alito and Neil Gorsuch on the right, Justices Ruth Bader Ginsburg, Sondra Sotomayor, Stephen Breyer and Elena Kagan on the left and Chief Justice John Roberts and Kennedy who often decided close cases and sometimes reached common ground with Kagan or Breyer.
Also: Full coverage of the second day of Kavanaugh’s hearing[6]
Democrats can’t get another liberal justice with Trump in the White House. Although more conservative than Kennedy, Kavanaugh is more likely to become an occasional swing voter than anyone the Democrats could get if they derail him.
Also read: Excerpts from Kavanaugh’s opening statement[7]
During his service to the campaigns and administration of President George W. Bush, Kavanaugh established a persona as a tough conservative.[8] However, since joining the Court of Appeals of the DC Circuit, he has demonstrated a remarkable openness [9]to legal reasoning across the ideological spectrum.
He has ruled against issues liberals hold dear but based on constitutional principles.
For example, overruled on appeal, he argued that the Consumer Financial Protection Bureau was unconstitutionally structured,[10] because its director is excessively insulated from accountability to the political branches of government. He argued in a dissenting opinion that the Federal Communications Commission could not impose net neutrality, because it lacked explicit statutory authority.
Kavanaugh won’t answer ‘hypothetical’ presidential self-pardon question[11]
However, he sided with environmentalists in a greenhouse-gas case over regulation of “biogenic” emissions and argued that the Anti-Injunction Act denied courts jurisdiction to block penalties[12] assessed by the Affordable Care Act.
He has lavished praise on the scholarship of liberal New York Judge Robert Katzmann, his clerks have been hired by Roberts, Kennedy, Kagan, Breyer and other justices, and as dean of the Harvard Law School, Kagan hired him to teach.
Attempting to obstruct Kavanaugh may play to the Democrats’ base but will likely aggregate their chances among swing voters in the mid-term elections. Defending some 26 of the 35 Senate seats [13]up in November — including Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, [14]who are particularly vulnerable — this strategy will prove especially risky.
The questioning of Kavanaugh will reveal a thoughtful legal scholar who most any of us would be delighted to host for dinner along with other convivial, thoughtful guests. Then the...