Brett Kavanaugh and Merrick Garland: a note from the hearing

In Supreme Court nominee Brett Kavanaugh’s opening statement at his hearing Tuesday, he praised Merrick Garland, with whom he serves on the D.C. Circuit, as “our superb chief judge.”

If you were surprised by that, you shouldn’t have been. When President Obama nominated Garland to the high court, Judge Kavanaugh described his colleague as “supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court … He has been a role model to me in how he goes about his job.”

In fact, it has been reported in at least one place that one reason Kavanaugh was left off Trump’s initial list of SCOTUS nominees was that he had been so vocal and public in praising Garland’s nomination.

Now, it would be understandable if neither side in the partisan confirmation wars chose to emphasize this bit of background to the story. Republican strategists might not be keen on reminding listeners of what their party did with Garland’s nomination, and might also worry about eroding enthusiasm for Kavanaugh among certain elements of their base. Democratic strategists, meanwhile, might see the episode as one in which the present nominee comes off as not-a-monster, and, well, you can’t have that.

The lesson, if there is one, might be that the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time. [cross-posted from Cato at Liberty]


  • If one of the four progressive-leaning justices should resign or die, it would be classy for Trump to nominate Garland in his place. (But of course there has been nothing classy about recent judicial nomination politics.)

  • “The lesson, if there is one, might be that the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time.”

    Without doubt, that is true. And I am not suggesting that good relations among judges and respect for judicial acumen with respect to those who think differently is not a bad thing, but, a civility ethic isn’t an unqualified good. At the end of the day, Judge Pillard, on that court, penned an embarrassingly bad decision that was unanimously reversed by SCOTUS. Should civility norms prevent judges from openly questioning her judgment and talent?

    In another case, an 8th Circuit judge compared Missouri’s LI protocol to a high school science experiment, and Justice Ginsburg praised the dissent. Should the federal bench stand mute in the name of civility and collegiality?

    Obviously, we don’t want figurative food fights on the federal bench, but I think we should acknowledge the fact that the clubby nature of the judiciary undercuts accountability and may not be appreciated by people who get the short end of the stick from bad judging.

  • Judge Kavanaugh signed a letter in support of Judge Garland and has publicly praised him. Has Judge Garland done the same, or, like the political branches, is civility only expected in one direction?

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