The Senate should not confirm Brett Kavanaugh’s nomination to serve as an associate justice on the Supreme Court of the United States. His confirmation would do serious damage to the credibility and integrity of the Supreme Court as a critically important institution in our constitutional system.
I say this not because Kavanaugh is not intellectually qualified to serve on the court. To the contrary, viewed solely from that perspective, he is as well qualified as most of the other justices who have been confirmed in recent decades — including Samuel Alito, Neil Gorsuch, John Roberts, Sonia Sotomayor, David Souter, Lewis Powell, Warren Burger and Harry Blackmun, to name just a few. From this standpoint, I agree with the American Bar Association’s original evaluation that Kavanaugh is intellectually and professionally well qualified to serve on the court.
For a number of reasons, though, other considerations enter the picture. First, there is the unconscionable conduct of Senate Republicans in refusing to confirm President Barack Obama’s nomination of Judge Merrick Garland in 2016. By any measure, Garland was as qualified as — indeed, more qualified than — Kavanaugh. But the Senate Republicans, in order to manipulate the confirmation process in a determined effort to control the future direction of the court, violated every well-established norm in a profoundly dishonest effort to get our nation to this point — a point at which, if Kavanaugh is confirmed, there will be five Justices on the Supreme Court who are more aggressively conservative than any other justice, except Antonin Scalia, who has served on the court in living memory.
Kavanaugh revealed himself to be untrustworthy in precisely the way justices of the Supreme Court must be trustworthy.
Senate Republicans have used every available device and distortion to create a rock-solid right-wing five-member majority that will vote the straight-up Republican Party line on such fundamental issues as gun control, campaign finance reform, labor unions, abortion, gay rights, affirmative action, gerrymandering, corporate and commercial speech and minority voting rights, without regard to any serious, consistent or principled theory of constitutional interpretation.
The confirmation of Kavanaugh would represent the triumphant completion of this strategy and the culmination of the Senate Republicans’ reprehensible treatment of Garland. This should not be permitted to happen. If it does, it will destroy the integrity and credibility of the Supreme Court for decades to come.
To someone like myself, who has devoted his entire adult life to teaching, writing and speaking about the Constitution of the United States, this is truly devastating. What we need now — what our nation deserves now — is the appointment of a relatively moderate justice, like Garland or Souter, whose presence on the court will enable it to retain its identity as a court rather than as a partisan political actor.
Beyond that, there is the issue of personal integrity. With the highly credible testimony of professor Christine Blasey Ford, serious questions have been raised about Kavanaugh’s integrity, honesty and temperament. Having watched Ford’s and Kavanaugh’s testimony before the Senate Judiciary Committee, I am inclined to accept her version of events. But even if she is in error, I have no doubt that Kavanaugh could have calmly and sympathetically testified that her memory of the incident was flawed and that it was some other person who inflicted this horror upon her. He did not do so.
Instead of expressing respect and sympathy for Ford and calmly suggesting that she was mistaken in thinking that he sexually assaulted her, he ranted and shrieked and tossed off accusations and lies that demonstrated, to my surprise, that he clearly does not belong on the Supreme Court of the United States. Even if he did not do what he is accused of, the way he presented himself was truly shocking, immature, irrational and uncontrolled.
No person with that degree of emotional instability belongs on the highest court in our land. Kavanaugh revealed himself to be untrustworthy in precisely the way justices of the Supreme Court must be trustworthy. They must be calm, thoughtful, open-minded, respectful and mature; Kavanaugh has made strikingly clear that he is none of these things. That, in itself, is a compelling reason not to confirm his nomination to serve on the Supreme Court.
Over the past half-century, I have had the privilege of getting to know, to varying degrees, most of the individuals who have served on the Supreme Court since 1968. None of them — none of them — would have behaved in the truly immature and reprehensible way Kavanaugh did before the Senate Judiciary Committee. He is simply not fit to serve as a justice of the Supreme Court. If President Donald Trump, Senate Republicans and the Federalist Society care at all about the integrity of the Supreme Court as an institution, it is time for them to go back to the drawing board. They can do better, and they should.
Geoffrey R. Stone is the Edward H. Levi distinguished service professor of law at the University of Chicago.