Mike McConnell on the Brett Kavanaugh nomination

Michael McConnell, the esteemed Stanford law professor, writing in The Hill:

There is plenty of controversy over the nomination of Brett Kavanaugh to the Supreme Court, but almost none of it is about him. Even detractors appear to have abandoned any claim that he lacks the intellect, experience, or temperament to be an outstanding justice. Critics have combed through 12 years of his opinions on the District of Columbia Circuit, second only to the Supreme Court in the high profile cases it decides, without coming across a single opinion that is half baked or unreasonable…..

Temperamentally and philosophically, Kavanaugh more closely resembles the moderate John Roberts than the fire-breathing monster some of his detractors are attempting to portray. It would not surprise me, although I could be overly optimistic here, that with Kavanaugh on the Supreme Court and Justices Breyer and Kagan showing signs of willingness to break with their more leftward brethren or sistren, the new Supreme Court could have a serious principled middle for the first time in decades. That would be therapeutic for our obsessively polarized country….

Some of the hostility of Democrats to any nomination of a Republican president, no matter how qualified, is due to backlash against the Republican Senate’s refusal to consider the nomination of Judge Garland, an exemplary nominee, to the Supreme Court in 2016. Of course, Republicans thought their actions toward Garland were a justifiable backlash to Democratic refusals to consider Republican judicial nominees in election years in the past. Whatever the merits of those arguments, they should not be allowed to poison the well of Supreme Court nominations forever, or the nation will pay a stiff price….

Whatever any of us might think of Trump, he was elected president by a vote of the people in accordance with constitutional processes. Unless and until actual charges are brought and proven against him, the people of the United States are entitled to the presidency they voted for. In my opinion, it would be highly improper for any senator to vote against an exemplary nominee to the Supreme Court in the anticipation that the president may at some time in the future be impeached, charged, or convicted of a crime. Unless and until that happens, Trump is entitled to nominate a new justice to the Supreme Court, and we should all be pleased and relieved that the nominee is a person of the character and ability of Brett Kavanaugh.


  • This is about acting like the kid in the grocery store line who throws a temper tantrum so Mom or Dad or someone will buy him candy or a toy. In this case, the toy or candy is air time on various TV channels with lots of adjectives like “brave” or “insightful” and getting your name spelled right in newspapers so you can do the Sunday shows.

    It’s not about a “backlash” involving Judge Garland. Judge Kavanaugh was one of the Judges who signed a letter supporting Judge Garland. Won’t hear that fact repeated by our “news” organizations, but, I suspect that it will be brought out when someone needs to be embarrassed. .

    It’s not about his qualifications. With over 300 majority opinions, over 100 dissents, and over a dozen times the Supreme Court has adopted his position (sometimes unanimously), his approach to applying the law to the case is well understood for anyone who wants to take an honest look. He decides cases. He doesn’t make policy.

    It’s not about his character or personal life. He bought baseball tickets, called 911 to report his car stolen, coaches his daughters’ basketball team, and serves food to the poor.

    It’s not about convincing some Republican Senators to jump ship — not after Sen Kyl was appointed to serve out McCain’s term. That makes a solid 50+ votes to confirm, meaning that Republicans who might have been considering to vote not to confirm will probably go along, and 5 – 6 vulnerable Dems will go along and vote to confirm. This will drive the Dem base crazy since it means that Kavanaugh will have “bipartisan support” for confirmation.

    Accordingly, that leaves only attention seeking misbehavior as a reason to continue the attacks on Judge Kavanaugh.

    • There is an easy way for the Republicans on the committee to get around these shenanigans, but they probably won’t do it because they’ll want to engage in exactly the same shenanigans the next time the Democrats control both the White House and the Senate.

      The simple solution is this. Cancel the public confirmation hearings and send the nomination for an up/down vote by the full Senate Without it.

      The Senate didn’t start holding public confirmation hearings on nominees until 1916, and they weren’t routinely held for all judicial nominees until 1946.

      Prior to 1919, the nominees were sent for a full vote with a recommendation by the committee, without the committee actually interviewing the nominee.

      The public confirmation hearings have NEVER been about anything other than political theater and giving those opposed to the nominee a platform to smear/slander the nominee with impunity.

      • I like MattS’s proposal. There should still be a *reasonable* amount of discovery and written questions, just not the media circus. Justices might be confirmed within 30 days with a 75% vote, while a simple majority would suffice after 60 days.