Editorial: Supreme Court pick qualified, but confirmation process should be vigorous

JABIN BOTSFORD   |   Washington Post President Donald Trump applauds Judge Brett Kavanaugh and his family during the Supreme Court nomination ceremony Monday night at the White House.
JABIN BOTSFORD | Washington Post President Donald Trump applauds Judge Brett Kavanaugh and his family during the Supreme Court nomination ceremony Monday night at the White House.
Published Jul. 11, 2018

For the second time in less than 18 months, President Donald Trump has nominated a well-qualified, conservative federal appeals court judge to the U.S. Supreme Court. That does not mean Judge Brett Kavanaugh should get an easy pass through Senate confirmation hearings. Kavanaugh would tilt the court significantly to the right, and senators from both political parties should carefully examine his extensive record and question him closely about his originalist approach to interpreting the U.S. Constitution.

Trump passed over more provocative possibilities and nominated a Republican establishment conservative in Kavanaugh to succeed the retiring Justice Anthony Kennedy, the court's swing vote. A Yale law school graduate, Kavanaugh clerked for Kennedy, worked for President George W. Bush and has been on the influential U.S. Court of Appeals for the District of Columbia Circuit since 2006. He represented former Gov. Jeb Bush in defending a controversial school voucher program that later was struck down by the Florida Supreme Court, and he worked for George W. Bush's legal team on the Florida recount following the 2000 election.

Kavanaugh also has a long record that should be thoroughly explored by the Senate. He has written hundreds of opinions and worked for Independent Counsel Ken Starr during the investigation of President Bill Clinton. His lengthy paper trail, from the Bush White House to his extensive legal writings, needs to be scrutinized. That work should not be short-circuited by artificial deadlines aimed at rushing through the process and forcing a confirmation vote before the mid-term elections. The examination should run its course, and there is too much at stake to cut corners regardless of Kavanaugh's impressive resume.

This is not about replacing one conservative justice with another and maintaining the status quo. Kavanaugh could shift the court in ways that threaten abortion rights and equal protection for LGBTQ people. It could become more difficult for government agencies to pass regulations to control air pollution and fight climate change that particularly threatens Florida as sea levels rise. The future of the Affordable Care Act, which has its issues but has provided health coverage for millions of Americans, could again be in jeopardy.

Another particular concern: Kavanaugh's views on executive privilege given special counsel Robert Mueller's investigation into Russia's meddling into the 2016 election on behalf of Trump. The judge has written that presidents should be exempt from "time-consuming and distracting'' lawsuits and investigations that "would ill serve the public interest, especially in times of financial or national security crisis.'' With Trump facing multiple investigations and lawsuits, senators should question the nominee's views in this area closely and seek further assurances that he can be impartial if these questions regarding the presidency reach the court.

Democrats are eager to block Kavanaugh's confirmation, but they have limited options. Their simmering anger over Senate Republicans blocking a confirmation vote for appeals court Judge Merrick Garland, who was nominated by President Barack Obama to fill the vacancy created by Justice Antonin Scalia's death, is understandable. But Republicans still control the Senate, and Democrats cannot resort to obstructionism that should not be employed by either party. What Democrats can do is insist on a thorough review of Kavanaugh's record, regardless of how long it takes. They should question him closely about his views on deference to court precedent, his skepticism of the authority of regulatory agencies and his devotion to interpreting the U.S. Constitution as its authors originally intended.

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Kavanaugh is a well-qualified conservative, and Democrats do not have the numbers to block his confirmation by themselves. That does not mean he should be rubber stamped by senators from either political party. Now 53 years old, Kavanaugh could serve on the court for decades and help shift it in a far more conservative direction that could erode the constitutional rights of women, minorities and LGBTQ people. The confirmation process should be thorough, and the American people should have a more complete picture of Kavanaugh before the Senate votes on whether to confirm him.