Senator Susan Collins may look at Brett Kavanaugh and see a judicial nominee who looks just like the procession of Republican Supreme Court nominees she’s supported in the past: white, male, conservative, and well credentialed.
Don’t be fooled, senator.
Unlike Neil Gorsuch and John Roberts, Kavanaugh’s record raises real questions about his integrity that have only deepened as the public learns more about him. A person of questionable ethics shouldn’t be on the Supreme Court. Collins, the moderate Maine Republican whose vote is likely to be pivotal, ought to oppose his confirmation.
It’s not a recommendation made lightly. The Globe did not oppose Gorsuch and supported Roberts. Presidents — Democratic and Republican — have a right to nominate qualified justices of their choosing, and the Senate shouldn’t apply ideological litmus tests in exercising its constitutional duty to “advice and consent.” Maybe it’s a quaint belief, after the way the GOP abandoned all of the Senate’s norms to block the Merrick Garland nomination, but judicial nominations should be decided on the merits of the nominees. Kavanaugh’s obvious hostility to abortion rights is alarming, but it’s what President Trump promised and what Americans voted for in 2016.
Yet that doesn’t mean senators should rubber-stamp iffy nominees for lifetime appointments.
Start with Kavanaugh’s dissembling answer about abortion. It’s become standard for nominees to avoid commenting on their views on Roe v. Wade. It is not standard to mislead senators, but that’s just what Kavanaugh did. He told the Senate that he considered the ruling that legalized abortion settled precedent, but e-mails he wrote during the Bush administration — messages initially kept from the public — show him objecting to that very same characterization, editing a statement to include more skepticism about the ruling.
Yes, there’s a way to rationalize the discrepancy — Kavanaugh’s defenders say he was just accurately summarizing the way others felt about Roe v. Wade, not expressing his own view on whether the case was in fact “settled.” That’s semantic gamesmanship. The bottom line is that what Kavanaugh told the public was different from the views he expressed in private.
Then there’s the new evidence that Kavanaugh shaded the truth in answers to Congress during previous confirmation hearings, in 2004 and 2006. He was asked whether he had received documents stolen from the Senate Judiciary Committee and answered, “No.” E-mails provided to Congress make clear that he did, in fact, see those files. Newly released e-mails also suggest he misled Congress on several other matters, including his role in the nomination of Judge William Pryor during the George W. Bush administration.
Legal experts have said Kavanaugh’s answers probably don’t rise to the level of perjury, but that’s much too low a bar for Collins and her colleagues to accept. On multiple occasions, Kavanaugh plainly did not answer the Senate’s questions candidly. To vote to confirm him now would be a declaration that deceiving Congress is fine and dandy.
Even if senators are inclined to brush off his past, Kavanaugh also hasn’t fully allayed ethical concerns that could crop up in the future. The nominee should, at minimum, promise to recuse himself from any cases involving presidential power and the Mueller investigation, including any litigation around a potential subpoena of President Trump.
Liberals and Democrats shouldn’t fool themselves into thinking that a rejection of Kavanaugh would lead to a more moderate nominee. That’s clearly not in the cards from Trump. But there’s a deep bench of conservative jurists to choose from, and surely the president can find one without Kavanaugh’s strained relationship with the truth.