If confirmed, Judge Brett Kavanaugh will be President Donald Trump’s second appointment to the Supreme Court. It is an odd choice.
Mr. Kavanaugh, a federal appeals court judge in Washington, has neither the pizzazz of Judge Amy Coney Barrett nor the gravitas of Pittsburgh’s Thomas Hardiman. He has the real world, up from the bootstraps, appeal of neither.
Instead, Mr. Kavanaugh is essentially a political animal who worked for George W. Bush in his White House and Ken Starr during his investigation into Bill Clinton. He is an insider’s insider. Senate Majority Leader Mitch McConnell advised the President not to nominate him — too much baggage and too long a paper trail.
The President did anyway, consistent with his occasional pattern: When you start to get ahead of the game, promptly shoot yourself in the foot.
Mr. Hardiman, by contrast, would have been a sober, solid, and safe nominee. He was most recently confirmed in the Senate 95 to zero, and, before that, by voice vote.
Mr. Kavanaugh will educate us on his jurisprudence. Let us have the confirmation hearings and listen. He is a free speech ad- vocate, but mostly with regard to campaign finance. He is strong for the separation of powers. Maybe his political skills will get him through the process. He has said, for example, that one rule of being a good judge is “don’t be a jerk.” But he is an essentially political nominee instead of a juridical one, as Mr. Hardiman would have been and Neil Gorsuch was, and that seems a risk.
There are three more things to be said, as an immediate reaction, to this nomination:
First, this is not the nomination that the caricatured Donald Trump would make. It is not a flashy, divisive, or reckless nomination. Instead it is a Bush-type nomination — establishment oriented and unimaginative. And one that may cost as much and be as hard to win as a daring one.
Second, until Merrick Garland, this was the approach of Barack Obama: politics trumping law; the establishment figure over the maverick thinker. He nominated two very bright and admirable women, Elena Kagan and Sonia Sotomayor, to the Court. But they are more left than center left.
And, third, center-consensus picks — judges chosen for their judicial temperament and professionalism — were once the norm. It all went off the rails with the Bork hearings in 1987 and the Clarence Thomas hearings in 1991 — both of which became three-ring circuses.
In the former case, a scholarly conservative man was cast as a crazed zealot and a new phrase — to be “Borked” — entered the lexicon. In the latter case, a man of limited qualification was cynically nominated by a Republican president and the proceedings then became a psychodrama, sometimes a tragic opera, about contested allegations of sexual harassment. Nobody behaved well in that chapter of our discontent.
Supreme Court nominees have always been political in the large sense, but they were one step away from partisanship and two from ideology. Presidents were granted deference for their choice and the focus was on qualification. The Bork and Thomas fiascos changed that. Donald Trump missed the chance to change the change. This nomination fight may well be a partisan bloodbath.
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