Great op-ed! I applaud President Trump’s choice of Judge Kavanaugh. Hopefully liberals & conservatives will give him a fast and fair confirmation hearing. Kavanaugh has an unblemished record of bipartisan support and judicial experience to be a wonderful addition to the Supreme Court!
28
Yes by all means, liberals and conservatives should give him the same fast and fair hearing that Mr. Garland received.
6
So did Garland. Interloper Kavanaugh can just wait in line for his turn, AFTER Garland.
3
Fair, yes. Fast, no. Question him throughly. Give him every opportunity to reveal his learning and where he stands. Let him give evidence of his capacity to grow.
1
The article is compelling. But this note from Elizabeth Warren makes me realize that its author is leaving out a lot about the nominee!
"He opposed letting a young immigrant woman get prompt access to a legal abortion, and he's argued that sitting Presidents should be exempt from lawsuits and criminal investigations or prosecution while in office – wouldn't Donald Trump love that?
"And if that's not enough, get this: He believes that the Consumer Financial Protection Bureau is unconstitutional, he tried to strike down net neutrality, and he's worked to make it harder for federal watchdogs to hold corporate criminals accountable and protect public health, safety, and economic security."
719
If Senator Warren weren't opposed I would be very suspicious of this nominee. The issues she lists make nice sound bites, but when they arrive at the D.C. Circuit they are mixed in with lots of technical issues that may control the outcome and may be subject to existing Supreme Court or Circuit precedent. For example, the issue concerning the Consumer Financial Protection Bureau was whether the unusual degree of independence granted to its director, including that he could only be removed for cause, was consistent with the Constitution's grant of the Executive Power to the President.
3
Won't argue about the Consumer Bureau issue, but Kavanaugh has flip-flopped on the accountability of presidents on a purely partisan basis. He has proven himself to be a party hack, and now is rewarded, let's not play pretend.
Well Joel, there goes the Federal Reserve?
1
Professor Amar seems unconcerned that Judge Kavanaugh will give the Supreme Court a permanent conservative majority for decades, which is bad news for women, gays, people of color, the poor and middle class, non-Christians, people who get sick, voting rights, the climate, democracy, and the future of the country.
554
Eric,
"...a permanent conservative majority for decades..."
Justice Thomas is 72
Justice Alioto is 68
Chief Jutice Roberts is 63
they probably will all retire in 15 years.
Lots of time for a Democratic President to
nominate Judges for the Court.
1
Conservatism can also mean a reticence to overturning precedent. In any case, the question is who would you ask Trump to realistically nominate instead?
1
Not to mention that Trump can then actually shoot someone on 5th Ave and get away with it. Kavanaugh seems to think that "if the President does it, it must be legal".
1
Academia is often a land of mentor and protege relationships and credentials more than intellectual merit. Here, the professor comes off as having been so eager to promote his protege that he had an article written and ready to publish on the 50% chance that his protege would be nominated. This does not suggest reflection and neutrality, but rather an agenda - that of his promotion of his protege - and of Yale Law's credentials.
As we have seen, Trump tends to favor individuals from "central casting" who look good in photographs/on TV and are impressive on paper. As a Harvard College graduate who knows many individuals who went to both Harvard and Yale Law Schools: the graduate of these schools tend to be highly personally ambitious and live in worlds disconnected from the great majority of Americans. What would benefit the country would be Supreme Court judges who have fewer establishment credentials but rather have had a broader range of actual life experiences.
It suggests the hollowness of Trump's rhetoric that he came into office to supposedly restore government's focus on the common man and woman, but in fact has chosen such an establishment figure for the Supreme Court that a liberal Yale law professor has a "ready-to-go" promotional piece lined up even before his selection is announced . . ..
386
I very much appreciate this comment and also thought it odd that the “liberal” case for the judge was published so quickly.
I was thinking the same thing, William. This was ready to go before the press conference was over.
The Lochner era is back.
so true
Mr. Amar, are you able to accept the fact that the president is under investigation and should not be able to choose a supreme court justice until his name has been cleared of any and all wrongdoing? Waiting until the Mueller investigation is completed seems fair, especially after the year-long Merrick Garland debacle McConnell put us through. President Obama was not under investigation, nor were any of his friends, his appointees, his family, his lawyers, or staff. I say, as a citizen of the USA, we wait.
1291
"... the president is under investigation and should not be able to choose a supreme court justice until his name has been cleared of any and all wrongdoing?"
The President is not "under investigation". And even if he were, where does the US Constitution says that the President loses his power to nominate Supreme Court justices when he "is under investigation"?
9
"...should not be able to choose a supreme court justice until his name has been cleared..."
Are we making up new laws on the fly?
7
I am curious, where in the constitution does it say that a sitting president that is under investigation is forbidden to pick a Supreme Court Judge?
In fact where is it written anywhere that a sitting president that is under investigation can't exercise his or her duties?
What the Republicans did with Merrick Garland was dirty, but they controlled the House and Senate. Obama had ZERO chance of getting a nominee through same as any lame duck president.
As it's been said, elections have consequences and making up arbitrary rules on the fly because a president is hated is not how the government works.
2
I know this is a heretical thing to say, but I am so over the whole “constitutionalist” nonsense. The Constitution is used in the same way the Bible is used: to find ways to justify what the person already believes, but using a source people aren’t allowed to criticize or question because it is somehow sacred.
A person who actually tried to follow the Constitution’s original intent would make most of us property.
You say constitutionalist, I say irrational dogmatist.
378
"A person who actually tried to follow the Constitution’s original intent would make most of us property."
You would have to ignore the *amendments* to the US Constitution. Amar actually criticizes Scalia for doing something close to that:
"... Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments."
7
IT's one thing to try to follow the Constitution "as written." It is another thing to make the Constitution an idol. We already have enough idolatry around here.
1
The last time I checked, I believe we are still a majority Protestant country. Why then does our Supreme Court not reflect this majority?
18
Its simple Thor. The Protestant presidents nominated non-Protestants. A tribal quota system is not the way to go. We’re Americans.
5
Time to check again.
Of people declaring a religious preference, the largest slice of pie does belong to Protestant and other (non-catholic) Christians. While this slice is the largest, it is not a majority (over 50%). And it decreases further if you include people who do not affiliate with a particular religion.
2
We have freedom of religion and freedom from religion. A Supreme Court justice must not allow his or her religion to affect any judgements. Separation of Church and State, remember?
2
This aside says it all: "(Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)"
Great. So thanks for explaining why your former student should be a Supreme Court justice, which is undoubtedly something you'll consider a feather in your cap. I'm glad to know he will carefully research his decisions to deny rights to people of color, the LGBTQ community, immigrants, women, and other vulnerable people. After all, he went to Yale!
671
I wonder if you would be as dismissive of a former professor's opinion of Judge Kavanaugh if it had been negative. I suspect not.
10
Actually, David, the best chance we have of slowing down or undermining this nomination is to have more law professors from Yale declare their support for Kavanaugh.
4
Wow. Why bother to hold hearings? You could just tell the senators that you know in advance how he's going to vote on every issue!
3
"He can't bad. He's one of my favorite students!"
Has Professor Amar said any more than this?
With more bland assertion than telling detail, Professor Amar asserts that Judge Kavanaugh is a wonderful potential member of the Supreme Court because of "his powerful defense of presidential authority."
Say what?
It is news to me that presidential authority suffers any inappropriate check or balance in today's United States.
"A Liberal's Case for Brett Kavanaugh"?
It reads more like "A Yale Professor's Case for a Yalie."
101
"He can't be bad. He's one of my favorite students!"
Has Professor Reed said any more than this?
With more bland assertion than telling detail, Professor Reed asserts that Judge Kavanaugh is a wonderful potential member of the Supreme Court because of "his powerful defense of presidential authority."
Say what?
It is news to me that presidential authority suffers any inappropriate check or balance in today's United States.
"A Liberal's Case for Brett Kavanaugh"?
It reads more like "A Yale Professor's Case for a Yalie."
8
Clearly you meant to say this is Trump’s “swankiest move,” Professor.
9
Dear NYTimes Editors-
Can I submit dumb ideas just like this one? I have a ton.
Votes for answering questions? This is really stupid.
We don't care about his past legal intellect - the smarter, the more he will manipulate the law to his interests.
We all know that the Supreme Court is a bunch of old lawyer hacks that twist legal arguments to their idealogical leanings.
I have no faith the Supreme Court acts in our interests. It's a bunch of life appointed intellectuals, who once get appointed distance themselves from reality and can argue any side of the case at a whim to their narrow world view.
I say we push Abortion and Gay Rights to referendums and stop relying on out of touch elders to decide our rights.
36
Good luck Mr Kavanaugh. Hopefully this helps bring about sensible laws and protects those without a voice. Seems like a good choice.
16
The job’s done. There’s no point even pretending someone else could get the job. We all have to wait for the next opening now.
14
It's all irrelevant since it is all part of a backroom deal. Kennedy negotiated his replacement before he retired. Am also wondering what prompted Mr. Amar, a Yale professor, to support the Yale grad here. Does he know him personally? Why doesn't he disclose?
11
He did disclose. Read the article. Kavanaugh was his student at Yale Law.
28
Here's a really simple alternative. Confirm Merrick Garland NOW and tell Brett Kavanaugh that he's welcome to wait his turn and see what happens when the next seat opens up on the Supreme Court.
71
Very well written professor. The liberals in Washington have lost another contest. Their arrogance and unwillingness to compromise will bring their dream of an extreme socialist state to an end. Most of these people don't even know what they are protesting about!
19
Yes all socialist states begin with government legislating what people do with their own bodies. Thanks GOP.
14
Nowhere in this column does the author call himself a "liberal". It was someone on the NYTimes who wrote the headline for this piece! Amar notes is that he voted for Hillary, but that might have been because he was (rightly) suspicious of Trump, it does not in any way prove that he is a liberal. And his support of Garland does not demonstrate a "liberal" bent. Obama nominated him because he was moderate and had a better chance of passing the Senate vote.
16
He seems better than Gorsuch. The Democrats need to calm down and stop looking so strident. What is really upsetting is not this candidate to replace Kennedy but the fact that Merrick Garland was not reviewed and confirmed. The country wants to see less screaming and shouting. The Democrats need to start acting like statesmen so that citizens will feel good voting for them and against the corrupt and morally bankrupt GOP.
30
What Professor Amar, clearly fails to grasp is that the process has been corrupted to its core. Yes, Republicans stole a seat, but more insidiously they unilaterally eliminated the Senate's only antidote for extremism, namely the filibuster. That move resulted in a far greater injury to the legitimacy of the court than denying Garland the vote initially. After all, with the filibuster intact, the only compromised judge capable of filling Scalia seat would have been Garland after McConnell brazen power play. Neither Gorsuch nor Kavanaugh would even be considered, regardless of the President's whims. Therefore no judge appointed by this president regardless of how qualified will ever be considered legitimate without crossing the 60 vote threshold. The well is poisoned.
As a result, not only should Dems fight this appointment tooth an nail, immediately upon taking office, a Democrat president should demand the resignation of all of Trump's appointees. An equal group of Republican and Democratic senators on the judiciary committee (regardless of the composition of the Senate) should convene and agree on their subsequent replacements... a liberal and a conservative, two moderates, whatever. After the full Senate votes, term limits should be instituted on the court and the filibuster reintroduced. If Republicans refuse, they should pack the court. If the institution is going to behave like all other political institutions than it should be treated as one.
20
Do people of "great intellect" and "unbiased judgment" typically introduce themselves with buffoonish and blatantly untrue statements like "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination"?
The guy showed what a clownish puppet he intends to be in his first 5 minutes in the public eye.
40
Wow--the timing of this piece is impeccable. Immediately after Kavanaugh's nomination, we get this endorsement from his Yale Law School professor.
The Times was right about the right-wing's infrastructure to promote its bench--I mean that in both senses of the term.
19
The author remains under the delusion that we live in a bipartisan world of reason.
I don't care how qualified the nominee is. Any Democrat who supports him has failed to grasp the meaning of a "party in opposition."
33
How many 'liberal' law professors did you have to contact to come up with one that would support Kavanaugh?
8
Here's the difference between Republicans and Democrats. Google "A conservative's case for Merrick Garland" and you won't find one posted on the NYTimes shortly after his name was announced.
22
Wow that happened fast. I knew there would be voices calling on Democrats to cave, and to beg their Republican masters for a few extra table scraps instead of putting up a fight. Are Democrats spineless shills, or principled leaders? Kavanaugh will be the judge of that.
11
Just because Kavanaugh went to the "right" schools doesn't make him an appropriate choice. The Supreme Court is already representing the complete insanity of the terrified white male. It's sickening. The present Supreme Court is not representing the will of the people, as isn't the Congress, and the Executive Branches. Our country is under the tyranny of corruption and idiots. Trump the moron in chief, thanks his mean spirited moronic base. Trump's now weekly Nazi type rallies, are an embarrassment, and now with this self serving choice of Kavanaugh for the Supreme Court the absurdity pegs to a red alert. Seriously, Donald Trump is under a major criminal investigation, and he gets to choose a Supreme Court Justice, who sees the President as being above the law: a virtual dictator. It's vomit inducing.
50
Trump is a rightwing rube. Kavanaugh is an erudite reactionary. Should I be relieved?
6
Tl;dr: The best possible nominee is actually Garland
31
It is wishful thiunking on the level of the wizard of oz. He is being nominated precisely because the republicans strongly believe that he will impose the extremists views that they want. Only a foolish, naive person can believe otherwise. Democrats for the sake of our democracy must fight and obstruct this nomination which would inflict extremist, intolerant, special interests for decades. Republicans have proven again and again that they are anti government and anti-average Americans and always act for the interests of religious, intolerant extremists and corrupt corporate interests. This is why Kavanaugh is their man.
17
Professor Amar, I admire the thoughtful approach you've taken to judging the best way forward in the case of Judge Kavanaugh's nomination. From the perspective of the legal community, and even perhaps from a legislative perspective, it all seems so reasonable. But your piece raises in my imagination a horde of ordinary citizens peering through the bars of a sturdy fence, listening to the back and forth regarding the nominee's qualifications, his integrity, reputation for scholarly depth in judging cases and so on, while wondering how all this talk is going to give us a court that is not way off-kilter with respect to judging the many issues that rack the nation. It's true, as you pragmatically suggest, that we have come to a certain situation, one that we outside the fence can hardly comprehend. But we say "this is America?" And in your eyes, the best we can make of it is to accept a fait accompli, at the hands of a corrupt President and inner circle, instead of raising holy hell, demanding a more just outcome?
Out here, outside the fence, it doesn't seem that raising all the hell we can isn't the best course. We should be as obstructionist as we can be. At worst, we could only tie McConnell. What do we have to lose? We might go down in history as saving the nation from the judgments of an ideologically fervent cabal locked in power for a long time.
20
Please forward this to everyone you know:
https://www.alternet.org/history-hypocrisy-evangelicals-used-be-pro-choi...
Excerpts: Randall Balmer's book, "Thy Kingdom Come" - The Christian right was not originally animated by abortion, but by the defense of private, tax-exempt, racially segregated colleges and schools.”
From Jonathan Dudley: In 1968, Christianity Today published a special issue on contraception and abortion, encapsulating the consensus among evangelical thinkers at the time. In the leading article, professor Bruce Waltke, explained the Bible plainly teaches that life begins at birth:
“God does not regard the fetus as a soul, no matter how far gestation has progressed….… Clearly, … in contrast to the mother, the fetus is not reckoned as a soul.”
From the magazine - “Christian Life” - “The Bible definitely pinpoints a difference in the value of a fetus and an adult.” … The Southern Baptist Convention passed a 1971 resolution affirming abortion should be legal not only to protect the life of the mother, but to protect her emotional health as well.
Paul Weyrich: "I was trying to get [evangelicals] interested in those issues and I utterly failed," What changed their mind was Jimmy Carter's intervention against the Christian schools, trying to deny them tax-exempt status on the basis of so-called de facto segregation."
That’s when they suddenly got religion about politics — and got political about their religion
12
I think you have been drinking some sort of Koolaid that has caused you to completely forget the Constitution - and its tenets that include the idea that no man is above the law. Our democracy has been threatened in the most tactile way and it is possible that our president has been part of the problem - wittingly or unwittingly. The point is we need a impartial, principled judicial to act as a check and balance during this time especially. And you are supporting a jurist who has stated his beliefs that a sitting president - should not be tested, questioned or bothered by the processes that will ensure our democracy lives? What, indeed, is going on at Yale Law School?
22
I believe I'll await your Yale Law colleague Linda Greenhouse's opinion. I somehow expect it will be quite different.
13
Vote!
19
When a Democrat is in the WH, we are told we must wait because his term is now "lame duck", even though he still has more than ten months to go and his hand still controls the nuclear button. No scandals and no investigations for this President, but for some strange reason he is a lame duck.
When a Republican is the WH, and in spite of the fact his campaign is still under investigation, several of his cronies have been indicted, he himself has proven innumerable times that he is a liar, misogynist and a demagogue, has scandals galore and did not win the popular vote, and yet, we are told, there is no need to wait for the Mueller report. Let's rush this through says the Republican leader.
In what way is this fair Mr. McConnell? Is this called justice? How ironic is it to appoint a Justice to no less than the Supreme Court in the most UNJUST manner!!!
SHAME!! SHAME!!! SHAME!!!!
41
Harry Reid made the rules Sarah. The Republicans are just following them.
12
Ah fair Yale; that bastion of free thinking and equal opportunity!
5
So “true.”
2
I see how the authors common sense proposal is dismissed by the attitude displayed of those on the left still smarting from 2016. Elections have consequences. Put up better candidates and you won't have this problem. I am not a Trump fan but face it, he is here until 2020 and perhaps beyond if the adolescent acting out doesn't stop.
17
I read someplace that the Democratic senators from red states and the pro-CHOICE Republican senators should all agree not to support a candidate who does not have widespread bipartisan support. Of course, this is problematic for the Republicans, who will never get Kavanaugh confirmed with support from a large number of Democrats. They would have to admit that President Obama, in nominating Garland, had nominated someone who should have been acceptable to Republicans, even if he would not have been their choice.
5
He is
*pro-gun
*anti-abortion
*anti public healthcare/ACA
*pro Trump having unlimited power even if Trump is found guilt in the Mueller Case
....remind me again why I would want to vote for this person?
23
You don't get to vote on this. Only US Senators get to vote to confirm the appointment. If you don't like the selection, tell your Senators.
11
Because he is pro gun, anti abortion, anti government run health care and pro Trump. That's why.
7
he was a political appointee with thin to non-existent experience in practice, he's probably never tried a case, and we can safely lay bets on how he'll rule on issues certain to arise.
if this is the best the country can do we can kiss our liberties goodbye, like the rest of the christian mullahs on the court he will reverse Roe, further empower corporations and turn a blind eye to republican gerrymandering, no matter how transparent.
10
First, the "compromise" you offer Democrats is arrogant and condescending -- Kavanaugh won't answer questions directly, and with all due respect, US Senators get to vote on judicial nominations without a permission slip from law professors.
Kavanaugh may be the best that Democrats could hope for under a Republican president -- but Merrick Garland was the best Republicans could hope for from a Democrat. And Kavanaugh merely offers that he will overturn Roe v. Wade, ACA, voting rights, civil rights, workers' rights, etc. with a professorial air -- he's Scalia, but without the evil, sarcastic glee.
Finally, you are yet another voice asking Democrats to be reasonable and civil, while Republicans practice politics as total warfare and crush us. Hard pass.
31
See Harry Reid my friend. Evil personified.
12
Professor Amar, your support for your former student is touching indeed, but if you had done your job by teaching him, when he was in your Constitutional Law class at Yale Law School, that “originalism” is hogwash, we wouldn’t be having this conversation. Interesting, too, how you cloak your support of Judge Kavanaugh with praise of Judge Garland, yet gloss over the unconstitutionality of the Republican-controlled Senate’s failure to perform their advise and consent function after Garland’s nomination. It’s time for us to appoint judges with judgment, instead of those who profess to have the raspy 250-year-old voices of Hamilton, Adams, Jefferson and Madison still whispering in their special ears.
30
Can we accept that, even if you read all about the debates and the Federalist Papers, that the only honest conclusion was that the constitution was purposely evasive so as to draw support - so it had no real fixed meaning, then or now. And... if we look at the actions taken by various administrations, or by the courts , that the constitution ceased to have meaning (when the post civil war SCOTUS overruled civil rights laws) or when the New Deal came in. But the New Deal's acceptance, including Social Security means that if we want to turn back the clock, we must deny our recent past. We are a mess and need to abandon our silly notions of meaning.
5
The fight over this nomination reminds me of a key distinction I have seen in over 30 years as a lawyer. That distinction is between litigators and business lawyers.
Litigators fight. To them, there is a right and a wrong, and they are always right. Every case is win-lose, and they need to win. Or if they lose, at least they lost fighting.
Business lawyers do deals. To us (for I am one of them -- at least most of the time), there are my interests and your interests. In every deal, both sides need to win -- otherwise, you have no deal. So the objective is win-win.
Most politicians are like litigators. Some literally were. Chuck Schumer is a classic case. He knows he is not going to win this battle, but he fights it anyway. He has no interest in doing a deal.
Donald Trump is different. He does deals. And he is good at that art. One of the best. As the author of this article so smartly suggests, Chuck Schumer should try to do a deal with him on this issue. Get something in return for not fighting to the bitter end.
Some will say that Chuck Schumer is right to fight instead of deal. Maybe, politically, he is. But if he put the interests of his country first, he would deal, not fight.
Speaking of putting the interests of his country over his own selfish interests, John McCain needs to resign. Now. Your country needs a senator in Washington doing his job instead of dying in Arizona. Sorry to be so blunt, but it seems blunt words are needed.
10
Trump is one of the best at the art of the deal? Are you kidding?
You know that he didn’t write that book that gave him that reputation. Right?
Using your analogy, I would compare Trump to a litigator than a business attorney. He has torn up way more deals than he has made. He seems to approach everything as a zero sum gain where you either win or lose and tries to bully people into getting behind him rather than give anything up.
Remind me of any deals he has made that amounted to anything other than a tax cut that was passed on a razor thin party vote. If we flip the House and the Senate, then we will see how good he is at making deals. At this point I haven’t seen it.
I will also remind you that Schumer did make a deal with him on immigration that would have solved DACA and funded the border wall at the risk of alienating his base - something for each side. Then Trump went back on it. How many times do you negotiate in good faith and get screwed before you give up? Why should Schumer think that the same thing won’t happen again?
I don’t see Trump as a master deal maker. Reality TV is not reality.
10
Donald Trump had a book about deal making written for him. That doesn't make him good at deals, it makes him good at looking like he does good deals.
His deals only ever benefit himself, and that is slowly becoming clearer to his opponents.
Republicans believe their world will come crashing down if they compromise. Democrats want so badly to be reasonable... but you can't bargain with fanatics and expect to walk away with anything more than the shirt on your back.
Democrats need to fight as if the prosperity and long term stability of their country depends not on their success, but on the failure of their opponents... because it very well might.
8
Please don’t demean yourself and our country by disparaging John McCain. I’ve always voted democratic, but vitriol such as this—against a man who has given so much for our country, has made me switch parties.
3
"The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill."
This article failed to disclose Amar's additional avocation as a humorist.
9
Mr. Amar, The pre-amble to the Constitution reads: "...and secure the Blessings of Liberty to ourselves and our Posterity...." But according to the legal doctrines of the Scalia school, as soon as a woman has a zygote inside her she is believed to surrender these "blessings of liberty" and the state is free to control her body, her choices, and her destiny. Tell me where the constitution limits the "Blessings of liberty"? And then there is the first amendment. Besides a few patriarchal religious traditions, no religious belief speaks to abortion. And even among the religions that forbid abortion this notion of fetal protection is a modern invention. The folks back then knew squat about embryology. How, then, can the U.S. Government get away with "establishing" the religious beliefs (First amendment) of a few over those of the many? This isn't about legal chops, it's about deep seated gender prejudices. I'll take a judge who is capable of re-examining his beliefs -- a judge capable of changing his mind over one who holds onto his beliefs and comes up with brilliant air-tight arguments for them. Spare me an "originalist" who thinks that a fetus may have constitutional rights! Where is the word 'fetus' in the text of the constitution? Please! Hands off a woman's body, hands off a woman's religious beliefs, hands off her liberty interest in her own body. Yes, hands off even if you are a brilliant, Yale law school educated jurist.
22
Nice try, but unconvincing. Your protege leaves a track record of harsh decisions aligned with modern Republicanism. Moderate and balanced, he is not. Your formal pupil is not a reflection of considered, thoughtful law practice. His strong bias is obvious. You failed, professor.
15
I stand to lose the right to decide what I can do with my own body. I love it when men tell me this is the best I can hope for in the highest court in the land.
19
Thank you, Professor Amar, for this well-written and unbiased analysis of a new legal scholar and jurist about to rise up to the USSC. Judge Kavanaugh was my pick from the names on the short list, and I think he will make a fine justice. Plus, I say that as someone who voted for both Obama and for Hillary Clinton.
Yes, Merrick Garland would also have made a fine justice of the USSC, and if you cast an unbiased, unemotional eye on these men (I’m excluding Amy for now, because I am not at all sure she would be completely emotionally neutral in her decisions), you would see there’s not a whole lot of difference between them. Indeed, Obama picked Garland because he thought Garland was moderate enough to get enough GOP senators votes to be confirmed. The only obstacle turned out to be Mitch McConnell refusing to bring him up for a vote. That decision was pure politics.
I am a retired attorney, and a former federal law clerk at the district court level. I am also married to an attorney, and am the granddaughter of an attorney. Judge Kavanaugh is no better nor worse than Merrick Garland, and neither is Neil Gorsuch. They are pretty much equals, with mere shades of difference, all 3 equally qualified to be a justice.
What you (should) want in a USSC justice is a very intelligent, well-trained critical legal mind that is unbiased and neutral and a strict constructionist. Judges should apply the law as it is written, not as they wish it was written.
20
Show us, don't tell, professor. You failed to make your case.
9
It's extraordinary, what a heightened sense of certitude can render.
3
Kavanaugh was a member of the Bush administration from 2003 - 2006. During that period, the Bush administration was involved in a legal controversy. They dismissed federal prosecutors who were deemed insufficiently loyal to president Bush. What did Kavanaugh know about this and when did he know it? According to Karl Rove, Kavanaugh would have participated in the politicization of the Justice system:
"“I remember at the White House, he had a very difficult job. He was called the staff secretary, now nobody knows really what that job is and sort of underplay it,” Rove, a Republican strategist, said of Kavanaugh during the show on Monday night."
"“But literally every document that goes to the president on a policy issue has to pass through the hands of the staff secretary and he has to be the person who asks people tough questions about what they are trying to say in that document and helps edit it."
http://www.newsweek.com/karl-rove-brett-kavanaugh-was-central-all-policy...
6
The author said the same things about Gorsuch.
https://mobile.nytimes.com/2017/03/18/opinion/sunday/what-gorsuch-has-in...
11
The Times's ham-handedness is an embarrassment to its readers.
11
Really?? You're endorsing a guy who thinks your monopolistic ISP has a "First Amendment" right to decided exactly which internet sites you visit?
https://arstechnica.com/tech-policy/2018/07/net-neutrality-rules-are-ill...
This kind of Op-Ed in the NYT just proves that Tump is right about exactly one thing: the system is rigged.
14
“Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it.”
That, sir is the crux of the problem. His steerage will be far, far to the right. He is viciously anti abortion, women’s rights, pro gun, anti environment and anti immigration. Whilst you seem dazzled by an Ivy degree (he´s one of US, old chap) the rest of us look at the substance of his rulings. In the end, isn´t that the most important thing? A judge can rule on words in a sentence, but is useless unless they have a moral barometer that will include the way that all American citizens feel is just, not the way a small faction feels to whom he is indebted.
12
"But I'm a liberal!" It would make a nice T-shirt. Maybe Alan Dershowitz can give his to Prof. Amar after he's done summering on the Vineyard. The truth is, like Dershowitz, Amar really is a certain kind of liberal, that is to say a sucker for a theoretical liberalism, one whose underlying Kantian idealism and philosophical attraction for a certain kind of mind Michael Sandel described so clearly years ago. These kinds of liberals believe that the (individual's) right is always prior to (society's) good, that governments cannot pursue any particular vision of a good or just life for its members without turning those individuals into means, rather than treating them as ends withal. The problem, as Sandel also pointed out, was that no living individuals can possibly meet the idealized vision of a transcendental self such a version of liberalism requires. We all are encumbered by obligations large and small. We all thrive or are thwarted by the arbitrary gifts of fortune (like attending Yale Law School). Justice -- which seems like it ought to be the ONLY business of the Supreme Court -- requires a more rounded and roundly educated human being on the bench, certainly one more rounded than these coldly abstract theorists. Outcomes, not arguments, are the substance of judgement, and of the justice they underpin,.
10
Professor Amar, I don't care if Judge Kavanaugh received the 10 Commandments in person. He has been nominated by a president who is at the center of an investigation into whether he conspired with a foreign power, and whose closest associates face long prison terms for a range of criminal charges or likely criminal charges. This is an illegitimate nomination, and if Mitch McConnell's pious remarks about reactionary Democrats were not so sickening, they'd be truly funny. As it is, this New Yorker expects Chuck Schumer to lie down across the railroad tracks, if that's what it takes to stop this train wreck. And the three red-state Democrats? Give up your seats if you have to ... you will go down in history as profiles in courage. If anyone reading this has never heard of the Griswold v. Connecticut decision, I suggest you brush up on your constitutional history, because that one (which made BIRTH CONTROL, not abortion, but BIRTH CONTROL constitutional) will make Roe seem like a trip to Disneyland. If you want to live in a country where doctors can go to prison for prescribing birth control pills, sit back and enjoy the confirmation hearings. The rest of us will be in the streets.
17
How could Democrats insist on anything after the confirmation hearing begins? They'd relinquish all control. Winning strategy!
2
The title should be changed from "A Liberal's Case..." to "A Professor's Case for His ex-Student."
19
The NY Times should prominently state his disclosure that he was Kavanaugh's professor. This should be under his by-line, or at least on the bottom of the op-ed. Who is there left to trust?!
9
How about name one qualified judge? Merrick Garland. LOL
8
Professor Amar, you are being used by the Times as part of their "look at how unbiased we are being"/both-sides approach to news these days. Do not allow your position and the reputation of Yale Law School as an elite, liberal, east coast institution to be manipulated so that whoever at the Times is in charge can suck up to the administration.
9
If professor Amar is so respectful of originalist interpretations, why is it that almost all interpretations of "bearing arms" in the times that the Constitution was written were in the context of a militia (and not in the context of the individual)? Amar gets one thing right: Scalia was a lousy historian. Which makes his insistence on originalism indicative of slap-dash malpractice in which any cherry-picked concept from history can be used to justify extremist ideas. Originalism is a horrible concept that should be consigned to the historical dustbin.
12
You shot yourself in the foot in your opening paragraphs.
You say that you can't see anyone more qualified than Kavanaugh, "other than Merrick Garland."
So by ignoring that malfeasance (the failure to offer Obama's nominee 'advice and consent') and moving forward with praise, you join the body politic that is openly okay with Mitch McConnell violating the Constitution to gain a SCOTUS seat, and Donald Trump celebrating that violation in turn ("delay, delay, delay"), putting power before our Constitutional process.
If one celebrates this naked power grab, then one is a part of it. Maybe Law School isn't the best place for the author to work?
9
the pledge you are proposing makes you a fool.
This judge has already declared he does not think a president should be investigated while in office, much less indicted or even have to face civil trials, and he did this recently.
The same goes for Roe v. Wade. He denied a teenage immigrant access to abortion and when everyone of his colleagues on the appellate bench voted down his opinion he struck back at them claiming they were creating a 'new right', for people who he thinks should not have rights.
He needs to be blocked as do every nominee Trump puts up
McConnell gerrymandered the Supreme Court by blocking Merrick even getting a vote, saying the election was too close (a year away). Well the election is closer (November) now and that same rule should apply
16
A reasonably unconvincing argument, professor. Scholarship (a term you overused, by the way), can be a myopic exercise in rote learning...a technique employed by most Catholics on the right. I would proffer your boy is guilty of that shortcoming when it comes to actual thinking. The Ivies are WAY overrated when it comes to being a guarantee of quality. Unfortunately, many are swayed by the mere mention.
On another front, what ethical person would want their name forever linked with that of Donald Trump, a corrupt individual who may be indicted early in their term?
9
An originalist - good - that clearly means that he understands the time in history when the 2nd amendment was written and adopted. We can solve our mass shooting epidemic almost immediately. All firearms must now be black powder, single shot, muzzle loading. NRA will lead the charge for turning in of high capacity firearms. Archery target shooting and bow hunting will explode. Crossbow technology will be revolutionized. Camo clothing a hot item. No more calls for armed teachers in the classroom. LaPierre and Nugent buying stock in Bear Archery. They are ecstatic.
9
He seems fine enough to me too.
Clarence Thomas, that was a bad choice. Even beyond Anita Hill, Clarence Thomas was not qualified. And Clarence Thomas has not been good.
This guy will do better.
He would not be my choice, but I am sure that Trump would be capable of picking a clown much worse than this guy. We should breath a sigh of relief.
3
If he still believes that presidents should not be subject to criminal prosecution and investigations while in office then he doesn't deserve to be elevated to the Supreme Court.
13
So let me get this straight.
Kavanaugh is a fun guy, possessed of the legal mind to write anti human and civil rights opinions with the best of them. He may or may not still believe that a sitting president is above the law, and when asked by multiple Democratic senators whether he would overturn Roe v. Wade, he’ll be honest and not respond with the patented, “I can’t comment on a case that I haven’t had the opportunity to review.”
Do I have that right?
What a star.
8
Yes, that's how he'll respond. I believe it's called the "Ginsburg Strategy", invented by Ruth Bader herself during her early 1990's confirmation hearings. Thanks Ruthie.
4
Tut tut my good man - it will take care of the corporate welfare state and the 1% with religious encroachment - what could be better.
5
So the original intent of the Constitution was to support the practice of enslaving human beings for the purpose of being bought and sold and bred like farm animals. Is that the sort of justice we can expect this guy to dispense?
12
This op-ed takes the standard form of the putative liberal vouching for a right-wing Republican as some kind of open-minded gentlemen-scholar, so as to furnish the credibility for the coming capitulation to this nomination, entirely self-fulfilling, by the Democratic Party. There's no one else that could be nominated? Really? Other comments explain why this "liberal's case" is such a downright falsification of what this nomination represents, but it has value nonetheless because it is symptomatic of a particular type of liberal outlook that is completely spent, but which undergirds the Schumers, the Pelosis, and the NYT editorial board. We simply can no longer afford these vacuous apologies. May they all be resoundingly defeated in politics by the Ocasio-Cortez's and more, and in the public discourse by the availability of other sources on the internet while net neutrality and the false crusade against fake news has not yet completely censored them.
8
My poor, dysfunctional unAmerican country. What will be next...my heart bleeds.
6
Hundreds of thousands had to die in order to expunge slavery from the 'sacred' constitution.
This country is a joke.
11
Trump picked the only candidate who has previously opined that the President is above the law. There were no other considerations from the narcissist-in-chief.
The New York Times' normalization of this slow, right-wing coup is yet another misstep in the history of the paper. You've been wrong before and, when you were, vulnerable people were victimized by the positions you supported and damage was done to the country as a whole because of the power that you hold.
As things now stand, I am ashamed of the New York Times and I doubt my subscription will be renewed. History will not judge you kindly. Moreover, this is why the Washington Post is eating your lunch.
10
A liberal's case against:
He'll torpedo civil rights.
10
I understand the impulse to provide multiple points of view, but the number of op-ed pieces in favor of this dumpster fire, or supporting it any way, giving it any kind of legitimacy or praise is shameful. The New York Times is as culpable as any other media organization for getting us into this nightmare with irresponsible and short sighted reporting driven by ad sales and page views. The Editorial Board's scathing indictments and warnings don't balance out the puff pieces on the first family and associated malcontents or wretched op-ed pieces like this one. It doesn't matter if this nominee is or isn't anything. If someone is holding a lit match next to a powder keg you don't stop and consider the flame or hope the keg is empty. You blow out the match and then investigate. We're all morally culpable and giving any kind of pass to this administration's actions or statements is vicious. They think they are beyond consequences and can do what ever they like. They have no honor. They are pillaging our country and making their cronies and comrades rich, while children rot in cages and farmers and manufacturers suffer losses. They're bullies and their defense consists of a juvenile "who ever smelt it dealt it" approach blaming everyone else for their mistakes and greedy choices. I am so close to cancelling my subscription here after 20 years and subscribing the WaPo instead. Get your house in order, NYTs. This is irresponsible.
10
Forced pregnancy = Slavery !
NEVER AGAIN !!!
6
Anton Scalia was the prototype of Originalists. Except when he would abandon this principle in favor of his political views.
5
You lost me when you referred to Judge Garland's "failed nomination." It's hard to imagine a more outrageously biased distortion: Senate Republicans refused to consider Judge Garland's nomination. If there was a "failure", it was the failure of the Senate Republicans to provide "advise and consent" to a president's nominee to the Supreme Court. Two events have led to me view the Supreme Court as lacking in legitimacy: (1) The Republican justices on the Supreme Court making George W. Bush President; and (2) The Senate Republicans refusal to consider Judge Garland.
11
As Kathy, a Times Pick, has pointed out
we argue about the political views of the nominees
but rarely question why they MUST be from the
Ivy League Law Schools, nor why so few of them have
any actual criminal law experience, or were lawyers who dealt with the day to day civil legal problems of your
average American that can bankrupt any and all of us.
Where is the nominee who went to Law School at
Night, who was a Public Defender, who sued the
Insurance Companies on our behalf, or fought
employment discrimination...?
Why do we keep getting Justices who have the interests
of the 1 % at heart and not the 99% ?
Where is the outrage over such continued injustice ?
13
Justice Scalia was asked by a law student at one of the lesser schools (Notre Dame, as I recall) why he took clerks only from Yale and Harvard. He responded, “Because I want the best.”
4
Judge Garland's nomination was not a "failed" one; it was a ruthlessly, inexcusably obstructed one, a seat stolen by Mitch McConnell through an act unprecedented in American history.
And Donald Trump's presidency is an illegitimate one, facilitated by foreign interference in our electoral process, extreme partisan gerrymandering, voter suppression, the purging of voter rolls, Citizens United and the Electoral College, which has long outlived whatever usefulness it might once have had.
Trump is the subject of two different government investigations, which have already seen several guilty pleas from individuals who were very close to Trump; the very notion that we should quietly assent to the nomination to the Supreme Court of a man who has publicly stated that presidents shouldn't be the subjects of criminal investigations is beyond galling. Mr. Amar is applauding a a nomination that can only be described as self-serving one on Trump's part, as Trump seeks to seat a jurist who will almost assuredly take his side should Trump find his own criminal case before the Supreme Court.
13
Tell me again, why Democrats/Liberals/Progressives should just accept McConnell's perversion of Senate procedures to deny President Obama's final nomination to the Supreme Court, Merrick Garland and now just 'play nice'? And why should any president, under investigation by the FBI, for potential criminal activities with a foreign government, be permitted to submit any nominees? If McConnell has just 'made-up' the rules in order to suit his own partisan purposes (whose wife is the current Secretary of Transportation, after all) or personal gain, why is that considered valid, when we're talking about the Supreme Court?
12
Is it just coincidental that the personal, conservative view of co-called "originalist" judges seem to line up with exactly what, they believe, the founding fathers meant?
4
Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.
___
Re property rights of criminal defendants:
Ask him if Plessy v Ferguson should be revisited and [finally] deemed unconstitutional despite Brown v BoE?
3
Here are some questions for Mr. Kavanaugh:
1. Where do you stand on gay marriage, transgender health and equality for all?
2. Where do you stand on Roe v. Wade?
3. Since you are strong on precedent, how would you justify overturning either of those precedents?
We need a judge who believes that all people are equal under the law. I'm not sure Kavanaugh does.
5
Having scanned this comments section, one can come to only one conclusion-people who share their thoughts here have in large parts lost their minds. The section is a perfect representation of what conservatives call Trump Derangement Syndrome.
Professor Amar is so obviously right that it defies imagination that so many are unable to see it. A Republican has nominated one of the most brilliant, pre-eminent, and, yes, Constitutionalist judges in America. We should all be grateful that the nominee is so distinguished.
People keep bemoaning Garland. Have you conveniently forgotten that the Senate was controlled by the Republicans, not the Democrats?
Trump has the Senate, the candidate is a superior one, and several Red State Democrats will vote against him only at great peril in November, which does no one any good.
I hope that Amar’s dream comes true, that the hearings allow us to really know the man, and that he is resoundingly confirmed. It would be a welcome note of bipartisanship in a poisonous place.
10
Completely agree. I would only add that they also seem to have forgotten that their Harry Reid changed the rules which ultimately led to their current predicament. Funny how so many are now are calling for term limits and increasing the number of justices. But only when they are in power, of course, since any rule that doesn't benefit them needs to go.
8
Original intent included protecting chatle slavery and excluding nonlandowners. MORE IMPORTANTLY, this Judge posits Presduenta cannot be sued nore held criminally responsible for actions while being a sitting president.
6
When 'fair play' has been abandoned by the GOP, the Democrats would be dummies to play fair.
There's the law, and then there's the spirit of the law, and then again there's the good faith with which the actors engage the law.
When all three are aligned, we have democracy at its best. When as now, all three things are not respected by one party especially, we get a miscarriage of the democratic process, where the most unscrupulous carry the day.
Arguments about when a Supreme Court or other nomination can or should go forward, are irrelevant to the law regarding the process and responsibilities of the actors.
Its now 'eat or be eaten' times, the law of the jungle. Democrats need to get hungry.
6
I suspect that Republicans would not agree with your implicit assumption that Democrats play fairly but Republicans don't. Republicans still believe that this Supreme Court arms race started with the rejection of Justice Robert Bork's nomination.
This is about the fact that Democrats have certain political and social objectives that they wish to achieve as do the Republicans. And right now there is very little overlap between those political and social objectives.
However, in the end, we need a compromise where both sides of the political spectrum believe that their views are taken into account. We cannot have a system of victors and losers as that builds resentments and instability in our democracy.
2
See Harry Reid. Fair play? Hah!!
2
Any individual who argues for an "originalist" interpretation of the Constitution is woefully misinformed or undeniably biased. The Constitution was written by incredibly educated and intelligent white men. Only 12% of the population were eligible to vote in our earliest elections. Guns were muskets. Blacks were not people and women were barely people. The Electoral College was created to prevent the masses from electing a Trump. No recognized LGBTQ community existed. There was no nation, just a loosely joined conglomeration of states that were like separate nations. The concept of states' rights was essential because the states were separate nations, not part of one country as is the case today. Essentially, only Judaism and Christianity were practiced. The Bill of Rights was not included to protect the poor, or minorities, or Muslims, or gays. It was to included to thwart a new monarchy that might oppress the wealthy white ruling class. No founding father could possibly have forseen the nation as it exists today.
The principle role of a Justice must be to protect the least powerful in society. He or she must be guided by fairness, compassion and honesty. When the strict application of a constitutional principle would conflict with these basic concepts it must bend. Many Justices in the past have recognized this and interpreted the Constitution accordingly.
15
(Disclosure: I cite Professor Amar in my dissertation. Will not prevent me from criticizing him.)
What an awful, naive take from one of the foremost American constitutional law historians in the country. If you don't see the Gilded Age repeating itself (slightly differently, of course; free speech/religion instead of freedom of contract), then you are truly blind and actually really are just lovestruck by the "idea" of the Constitution as this enduring, immanent truth.
It does not--*does not*--matter where this guy went to law school, and the pure egoism that Amar implicitly shows by touting his old student as somehow a great pick is not only naive, it is distasteful. What Amar taught him matters not a whit in the realm of the Federalist Society. They laugh at libs like him all day long.
Newsflash: guys like Kavanaugh are constitutional radicals. They just have enough money and patient Kochs on their side to paint themselves as the reasonable, incremental ones.
12
I have to say I agree. Confirming Kavanaugh is good strategy. "Pick your battles" is idiomatic but very true especially here. The appointment is in the bag, it's time for Democrats to focus on the midterms, and on aligning around a core message that appeals to voters. I'm as anti-Trump as anyone, but anti-Trump is not a stance you can run on. How about pro-health care? Pro-unions? Anti-Citizens United? etc.
We will defeat Trump not in some dramatic trial where he is handcuffed and hauled away in an orange jumpsuit, but by understanding that he is a con man. Snake oil doesn't cure, and people will figure that out. Tariffs hurt the economy, and eventually the stock market will reflect that.
Confirm Kavanaugh and move on. The Right only wants us to foam and fight, spit and rail. A measured "Aye" might surprise them, and disappoint the reality theater people at Faux News.
8
As a middle aged centrist lawyer educated at Yale Law School, I take a lot of comfort from Professor Amar's backing of Kavanaugh.
Politically, Trump made a brilliant move, suggesting he might otherwise nominate that insane 7th Circuit judge, Amy Coney Barrett.
I don't think pro-choice people have cause to worry about Kavanaugh. Anyway, from the standpoint of preserving democracy, I'd be more concerned about the future of the First Amendment in this country, and I think Kavanaugh will have a healthy influence.
7
I second the opinion that Professor Amar's pride seems to be a prime motivator for his support of Judge Kavanaugh. Yes, he's come a long way from the classroom. But Amar's description of Kavanaugh as an originalist indicates the judge isn't so interested in the ongoing development of the constitution, and might not be supportive of more recent amendments that protect social progress. The framers had a great notion and built an incredible foundation, but they couldn't have accounted for all of the ongoing needs of a vibrant and evolving society. We need more than scholarship on the bench, we need empathy and vision.
9
A well thought out compromise but of course the republicans will do nothing of the kind so it’s a fantasy and it will never happen. If all that compromising were possible than Garland would have been given a hearing which McConnell flat out refused to do even though Garland was eminently qualified. So spare us the pipe dreams please.
7
While Professor Amar is correct that the Democrats have no legal methods to block the nomination, I am weary of the argument that they should still play "nice." Political machinations have shifted from somewhat reasoned to anything it takes to "win." I want to see the Democrats put Kavanaugh's competence to the test; if he is as learned as Prof. Amar states, then he should have no difficulty demonstrating his acumen and his approach to the issues and questions he will face, outlining how his decisions reflect his interpretation of the Constitution, including why an "originalist" position is a valid approach or understanding for a nation that has radically changed from what the founders established.
Put him through the wringer. Make him earn a seat that was stolen from the previous President. Make him explain why he is a better choice than Merrick Garland, who was the model for a Supreme Court justice. Have him answer how his decisions will impact everyday Americans who aren't donating millions to the Federalist Society, versus the corporations and right wing ideologues, who do.
The Democrats can only stall his elevation to the highest bench. But they should ensure that his ideology is laid bare for the public to see.
10
Breaking down your "compromise": so, if the Democrats don't agree to vote for Kavanaugh or propose someone else acceptable to Republicans (presumably vetted by the Federalist Society), Kavanaugh doesn't have to answer all fair questions at his confirmation hearing? And, by the way, only an "originalist" like Scalia could read an amendment that begins with "A well-regulated militia" and interpret that to mean that it has nothing to do with well-regulated militias. And, in interpreting a law "as it is written," the "originalists" throw out the Voting Rights Act by substituting their own views for those of Congress. Sadly, the right-wing Supreme Court has become just another bunch of political hacks who have lost the respect of most Americans. Kavanaugh will be right at home there.
10
Judge Kavanaugh should be required to recuse himself from any case involving the Trump investigation and so should Judge Gorsuch. They are clearly biased in that respect and they should not be allowed to get Trump off of whatever crimes he and his cronies may have committed.
Mr. Amar has some well thought out reasons for supporting Mr. Kavanaugh, as well as a personal bias toward him as a former student.
Something Mr. Amar doesn't seem to have considered is how Mr. Kavanaugh will rule on Roe vs. Wade and on cases allowing women to have an abortion. But Mr. Kavanaugh has recently ruled against abortion in the case of an immigrant who found out she was pregnant after crossing the border illegal and being apprehended by the US Government. He ruled against the woman, but luckily for her, he was overruled by the rest of his colleagues when the case moved up to full bench in that Circuit.
We know how Kavanaugh feels about Roe vs. Wade and the rights of women to elective abortion and on that issue alone he should not be confirmed.
His ruling against Roe vs. Wade will result in the enslavement of American women by unwanted pregnancy. He should be rejected by all Democrats and all Republicans who support the right of women to elective abortion.
Anything the Democrats can do slow or prevent Mr. Kavanaugh's confirmation should be done.
10
The author suggests a token of good will from democrats, but we saw during the 8 years of Obama how his good will tokens were taken advantage of rather than met with similar good will. There is no good will coming from McConnell, no quarter given and no possibility of a once again respectable senate until at least he is gone. Such naivete on the author's part puts into question the rest of his assessment. In addition, nominees for anything these days don't answer any real questions, just dodge.
I am not a lawyer and can't vouch for or against Kavanaugh on that basis, but he was involved with politics - W's white house - before being appointed to the bench, and in my mind, that alone is a good reason to at least question the appointment and maybe oppose it.
10
Answering all fair questions at the confirmation hearing should be a prerequisite for all judicial nominees, not something you do in exchange for a guaranteed confirmation.
13
The Times ran an opinion piece that said the same thing about Gorsuch.
These pro-corporate lawyers are fake democrats.
12
It would be good to disclose that the author was one of Kavanaugh's professor.
3
He says he was a Kavanaugh professor a few paragraphs in.
1
Did you actually read the article? It is quite clear the author was one of his teachers at Yale.
5
If he is going to be a credible Supreme Court Justice why does it matter. He said he would uphold the constitution of the United States of America. Isn't that his job? I think we need to stop looking at everything as liberal or conservative and look at this nomination as American.
This nomination interested me the most this week because I think it's very important for our country. We need to remember our Constitution and how it made America the best country in the world.
3
As a graduate of Yale Law School, Class of 1977, you should be embarrassed by this sycophant endorsement of Kavanaugh. He is qualified because he was a good student? How about his obnoxious pandering to the right during his tenure as key pit bull for Kenneth Star? Also, what a silly thing to propose-" we will be really really nice and sweet to you if you bother to answer our questions during our constitutionally mandated review of your qualifications for the Supreme Court" . I hardly think your trumpeting of your vote for Clinton excuses this nonsense
12
Constitutional originalism is just another poorly disguised effort to maintain white male authority. Why should the majority of Americans- ie, women- accept reproductive constraints which undermine our liberty? Kavanaugh is an ideologue and undeserving of a place on the SCOTUS. NO.
5
Ha! Does the professor seriously believe that Republicans would allow the judge to answer questions in a forthright manner? After what they did with Garland? Why should they? Murkowski and Collins are not going to hold out on this judge. Any judge that Trump nominates will be a conservative and these two surely do not have the courage to stand up to the rest of their party. In other words, the Republican Senate does not need to cooperate with Democrats at all. So naive.
7
nteresting opinion piece. I tend to agree. Trump could have picked someone a lot worse. There’s nothing the dems can do about it anyway except lose political capital and credibility trying to stop confirmation. It’s all about the next election. The dems should save their powder for winning the election. Not squander it on feel good yelling and posturing.
3
The midterm is only 4 months away. Democrats had to wait a year and yet Republicans can't 4 months? Democrats should do whatever to stop him. Trump then can renominate him in 4 months and the prof can then argue again how qualified he is. Now is not the time. Not under this fake president and the midterm only 4 months away. And to say that Democrats have no power to stop him so they may as well confirm him is a defeatest at best.
5
Can't we find someone who hasn't studied at Yale or Harvard or served on the D.C. Circuit? How about someone who has actually practiced law representing real people, not in government positions or for corporate interests.
3
He speaks to your concern in one sentence: "Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments."
1
The GOP stole a Supreme Court seat, so to suggest they might honor any "compromise" regarding hearings for this appointee is ... naive? ridiculous? insulting? Fill in the blank. I'll be letting my Dem senators know I expect them to be a hard "no" on this one.
9
"Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship."
Most people who have had any experience with law review articles either by reading them or working as law review staff will tell you just how useless or obtuse they are. The truth is most law review articles are written by law school faculty to boost their publications in pursuit of tenure, and many are poorly written. Most legal practitioners prefer to learn from a clearly written, persuasive legal opinion or brief.
3
A vote for Hillary Clinton and support of Merrick Garland is not a cloak of Democratic or Liberal respectability. The fact that the author feels the need to state that in this article suggests he feels somewhat sheepish if nor embarrassed about the position he is stating in this article.
1
Whoever the judge is, liberals need to wake up and vote. If nothing else, an overturning of Row v. Wade should light a fire under the liberal electorate. In my opinion this would be the best thing that could happen. Once achieved, perhaps 6 years from now a super-majority of Dems could perhaps enact Amendments which would overturn the ever-unpopular Citizen's United, replace the Electoral College, ban military-grade weapons and then go on to enact an Amendment protecting a woman's right to choose.
5
If honestly an "originalist," then Brett would take a stand Against the current interpretations of gun ownership and corporations as citizens.
2
Akhil Reed Amar is an iconclast, not a liberal. He is flying a false flag operation. No true progressive could be in favor of this nominee, especially given the Merrick Garland scandal. Partisanship has now destroyed any vestige of democracy in my view. The Supremes will be the subject of continuous disrespect in American History from here on in. They will live up to their decision in Dred Scott in the most awful way. While it's true that everyone in America will fear the Court, no rational being can respect it. Nor can they respect the media representing Mr. Amar as a "liberal", nor can they respect the predictably awful decisions yet to come.
6
The headline should read "A Liberal Yale Professor's Case for His Former Student, Brett K..." Thanks for that eventual disclosure. Conflict of interest aside, I think it's an absurd proposal, but best of luck in the apparent competition with Harvard.
2
I'm a 68 year old grandmother with a lovely middle-aged daughter and two beautiful grand-daughters, age 14 and 8. I contemplate all of our health decisions over the next 20 years. No health decision for Judge Kavanaugh will be pre-ordained by his anti-choice advocacy. He will not bare a child conceived from incest, rape or even non-violent, but non consensual sex. He will not be prohibited from procedures to ensure safely ending pregnancies outside the normal age for bearing children. It must be so easy for these of same complexion, same anatomical adornments, to say "No! Suffer and die for your unlucky designation as female."
If you love your freedom, vote 2018.
9
I have no knowledge of this judge, or of his qualifications to be appointed to a ridiculously outdated lifetime tenured position. But our reliance on branded credentials is so superficial and dangerous. To say that the degree from Yale or Harvard holds extra weight is so lazy and so thoughtless. We have lost the capacity to look beyond the stamp of approval from the "right" places, and to observe the character and ability to think. Our critical thinking skills are becoming ever more absent, while we depend more and more on superficial signs. (And I surely hope he recuses himself when we address the obvious criminality of the POTUS.)
5
How can you call yourself a liberal when you support following a constitution written by men 200 plus years ago? Sometimes I think anyone who hasn't lived in Williamsburg and Philadelphia does not have the slightest comprehension of the the great angst,conflict, compromises and out & out fights the writers struggled thru to produce this document. They were fallible men who were well award of their faults and did not at any time think the document was perfect. They worked very hard doing the best job they could under great pressure and produced a "living document". I have no doubt they are not only "rolling over in their graves", they are jumping up and down and screaming at our current stupidity. Everyone should stop reading the stuffy books by historians and politicians and walk the streets the founders walked. It is humbling.
5
"Although Democrats are still fuming about Judge Garland’s failed nomination". I am neither a legal scholar, nor even a lawyer, but when you say 'failed' nomination, it makes my blood boil. It seemed to me at the time, that Mitch McConnell just arbitrarily changed the rules to suit the GOP. Delay, delay, delay. Correct me if I am wrong.
You claim to be a Hillary supporter, an Obama supporter. You are a legal scholar, a professor of law. But, the sudden attempt by McConnell and Co to push through the nomination of Kavanaugh, your student, apparently, doesn't seem to bother you in the least. You even recommend that Dems ask "fair questions" of Mr Kavanaugh.
What about the swirling cloud of corruption around the entire trump clan? The Mueller investigation and the almost certain stream of lies and back room deals with Russians the trump faction perpetrated? The possible overturn of Roe v Wade?
No man understands what it feels like to be a woman who finds herself pregnant, when pregnancy was the last thing she wanted or needed. And, yet, we will now have five men who will sit in judgment and make the decision that will affect the lives of countless women.
Do you have any idea how this column sounds to a person like me? To a woman like me?
3
This is why liberalism can be a problem, and elite networks are always a problem.
1
So it would be a "compromise" for Democrats to take the high road and contribute time and energy to the White House by offering them alternative Conservative candidates in exchange for the current one actually going through the process in good faith and answering the questions he's supposed to? And this after Republicans took the unprecedented step of fully undermining the process by not allowing a hearing for Obama's candidate?
With all due respect to Kavanaugh's credentials, you do him a disservice by showing your very clear bias. That you use your Yale Law credentials to win authority makes it stink all the more.
5
"(Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)"
This should have been a sub-title, not an after-thought inclusion 1/3 of the way into the piece.
9
Democrats first pledge their "yes" vote and then they get to ask "fair" questions.
Are there any legal scholars out there who can explain to me how this is a compromise?
3
I just read a review of a new book by Martha Nussbaum, on the political crises gripping the country, that crises being that her candidate lost in 2016. I read here an opposite analysis, written by a democrat who apparently hasn't lost his mind. He is a rare bird indeed.To quote a past president, "elections have consequences." In the world of co dependence, one definition of a co-dependent is one who lurches from crises to crises created by the addict. Clear thought is the first casualty of living in a crises mode. The author here has not lost his mind or his perspective in the face of an unexpected loss in the last election. As a former democrat, here is some advice to present day democrats- find something besides Roe to be hysterical about-work on your crushing losses in the state houses across the county,as this is where the action is in congressional district drawing-urge your leaders to regain their status as adults, and offer a vision besides "no." This new justice has a good judicial temperment and a history of reasoned judicial analysis, whether you agree with the opinions or not.Last, but not least, leave the crises mode behind. It is not serving you well.
4
A liberal's case for Kavanaugh? Sounds like a masquerade given Mr. Amar's praise for the judge's "originalist" thinking.
For example, the 2nd amendment was drafted for the purpose of supporting militia's that were used to suppress slave uprisings and warding off attacks from native Americans who had their land stolen from them. This was the "original" purpose of the 2nd amendment and has been documented in the Times and elsewhere.
Given Mr. Amar's logic, the supreme court should hold that it is lawful to possess firearms only if we intend to kill blacks or native Americans if they do not heed our expectations. Amar praises Kavanaugh's knowledge of history but apparently he is less than well versed himself.
Originalist thinking is dangerous and misplaced and should be grounds for rejection. It is akin to driving forward while looking solely into the rear view mirror. It would be best if we all kept at least one eye on the road in front of us.
3
good grief! another dershowitz. our only "hope" about kavanaugh is that, in some way, justice kennedy, for whom kavanaugh served as a law clerk, has some assurance that roe v wade will not be reversed.
on the other hand, there are so many other areas of law that a right wing ideologue, such as kavanaugh, can affect--and so much damage he can do. read his opinions for the d.c. circuit: he votes for business, period, and against public interest regulation.
3
"Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.“
He changed his mind when a Republican got into the White House. He will change it again.
3
It is the tragedy of our broken system that Democrats have the responsibility to tear-down by any means necessary this highly-qualified, probably brilliant candidate. Had we constructed a more apolitical judicial system, Judge Kavanaugh would be a welcome thoughtful addition to a diverse Supreme Court. Instead, he is just another pigeon-holed white male DC-educated Ivy-League Catholic preppie with conservative ideas and little life experience similar to the average American. More attempting to plug a square hold with a circular peg in our "representative democracy."
2
Good lord, what an idiot.
2
A supportive essay from a liberal appears in the Times each time a conservative is nominated to the Supreme Court. These pieces always stress the independence and open-mindedness of the nominee. Then, after confirmation, the justice goes on to take consistent, far-right positions.
I have no hope that Kavanaugh will be any different.
5
Again Democrats are implored to be the responsible adults in the room and play fair. Where has that gotten this country?
I suppose the deal proposed is moot anyway as there’s no way the nominee will answer candidly or in good faith on his views of precedent making cases.
4
Professor Amar views this process too narrowly when he urges confirmation of Judge Kavanaugh and states that the Senate Democrats have limited options but to confirm Kavanaugh.
My hope is that the Senate Democrats unify and collectively oppose this nomination, as this President is under investigation and should be impeached for a whole host of reasons (not least of which is his blatant violation of the Emoluments Clause), and because the GOP--and particularly this President--ought to be denied.
If they do mount a unified opposition, the Senate Democrats might not only draw some Republicans to join their opposition (Republican Senators who actually care about the integrity of the Republic, anyway), but they will gain the respect of many disgusted Americans (myself among them) who have watched as time and time again the Republicans united in opposition to our forward progress on everything during President Obama's term, with no consequences to them for doing so.
Payback comes in many forms, and contrary to Professor Amar's suggestion, the Democrats can exert their payback if they want to.
4
I believe that he speaks to your concern in one sentence: "Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments."
Dr. Amar is paying a great tribute to one of his former law student. Similarly, watching TV last night, we saw the president introduce the new nominee to the SCOTUS, with praise. Judge Kavanaugh too took his turn to introduce himself. Both the president and the nominee have reiterated in the independence of our Judiciary, adherence to the Rule of Law, and the Constitution. Impartiality was the key word reading between the lines.
What matters now is, in the event Judge Kavanaugh is confirmed, how he would act? The SCOTUS is the place of last resort. Cases lost end up at the SCOTUS. With the SCOTUS made up of, whether they are moderates, liberals or conservatives, it is how they think and decide that matters. Justices sitting in the SCOTUS are all political appointees. It is difficult to say, which side they are on. Do their decisions, always align with the country's Rule of Law, precedent and safeguarding the Constitution?
Perhaps, Professor Amar can also clarify whether it is a good idea to continue having Justices to the SCOTUS, to be appointed by the president. Should the Justices have a term limit serving in Office?
1
I consider myself a progressive liberal. But we live in a democracy where everyone - even those we vehemently disagree with - must feel like they have a stake in the process. I don't think it's unfair to say that over the course of the last 80 years or so, the liberal perspective has been the dominant one both on the Supreme Court and in the political arena. In the last 30 years or so, that has changed somewhat and now conservatism is on the ascendancy. If liberals always prevail over conservatives in these battles, particular where there is a relatively equal division of voters, conservatives will rightly feel that they are shut out and bear resentments against government and their fellow, and more liberal, citizens. This is not good for government where all well represented positions need a voice.
Eventually, the pendulum will move and perhaps in the next 10 or 20 years a more liberal perspective will again prevail in the Supreme Court.
5
Last I checked, Senators do not have to make compromises to demand honest, straightforward answers from a judicial nominee. Perhaps the author himself should familiarize himself with the law of the land.
3
Hey! I know! Why doesn't the President and the congressional leadership get together to appoint a blue ribbon panel of distinguished legal scholars and respected community leaders to assemble names of candidates who will bring with them not a label on the political spectrum but a record of deciding each of their cases on the principles of fairness and merit? The longer goal would be to have not only the Supreme Court but all courts identifiable only by their just decisions and not their political stripe.
1
His powerful defense of presidential authority is of course the chief worry, given that the current occupant of the white house is set on doing whatever he pleases without any regard to either laws or norms.
Still, at least 4 more justices would have to agree if a relevant case on the topic even comes to the SCOTUS.
2
Weird that you don't mention anywhere that Akhil Reeb Amar is a contributor at the Federalist Society. https://fedsoc.org/contributors/akhil-amar
12
I agree with this comment, although weird is being kind. Perhaps the professor is saying at least there is this to say for the nominee. Given the political nature of the Supreme Court however that is very weak tea indeed. A well researched retreat on civil rights, including reproductive rights, is not even cold comfort. It’s no comfort at all.
2
The NYT is doing its readers a service by including a contributor to the Federalist Society. Because this organization is conservative and influential, it should be of interest to NYT readers. The idea that it should be excluded based on these factors is a view that perpetuates ignorance.
2
Aacny since yours is a reply please identify where the original comment or mine advocated exclusion. You can’t because they didn’t. So you have harrumphed a straw man of your own making
The editorial board published an editorial with the following title:
"There’s So Much You Don’t Know About Brett Kavanaugh"
https://www.nytimes.com/2018/07/09/opinion/editorials/trump-kavanaugh-su...
None of the information whatsoever that appears in Prof. Amar's op-ed about the legal background of Judge Kavanaugh is mentioned by the editorial board.
Glancing at the comments so far, Prof. Amar is accused of living in an ivory tower, being disconnected from reality and being more concerned with having a student of his appointed, conservative though that student might be. His support of Judge Kavanaugh is considered politically naive. Just another professor detached from reality, though he may be a Democrat.
Is it possible that Prof. Amar, a Yale law school professor may actually know what he is writing about?
The editorial board complained that the American people knows nothing about Judge Kavanaugh. They should read Prof. Amar.
5
Constitutional "originalists" are little different from biblical literalists: they conveniently cherry pick while ignoring what's patently absurd in today's context. We need to coin a new word for both of them: hypocritalists.
The Constitution was designed as a living document meant to evolve with society. See the 4th panel in the Jefferson Memorial for details.
3
And it has, by the method designed to allow it to evolve - the amendment process. It was never intended that the Supreme Court was to create new law, neither for the left nor the right.
Yes, amendments are a slow process. BUT, altering the basic framework upon which our government rests should be a slow and thoughtful process.
2
The Constitution is a living document. The method of evolution is clearly defined: the procedures for amendment.
2
In response to Akhil Reed Amar's opinions this morning, it seems to me that the only classy thing Trump could have done would have been to nominate Garland, who the Republicans wrongly refused to consider, and who is, in Amar's opinion, a better qualified Supreme Court nominee. That choice would have given the Supreme Court a worthy colleague, righted a grievous injustice, and signaled some willingness on the part of the Administration to work with the Congress and for the good of all Americans.
1
Garland didn't have the votes then and would never have had them now. As such, an empty gesture and waste of time. Americans have had their fill of this, which is why they are drawn to non-political types.
2
Obamacare decimated the Democratic Party. Remember that midterm shellacking? If happened after Americans got to see the real Obamacare, not the one sold to them by Obama and his cheerleaders.
1
"Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. Still, they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible." According to the McConnell rule, the Republicans should wait for the next election to allow the American people to decide who the next justice shall be.
1
If the Justice nomination were to follow the November elections, Trump's candidate would still be conservative. Scalia's replacement and Kennedy's eventual replacement by conservative judges isn't necessarily earth-shattering. The SC will essentially be as conservative as the court that found same sex marriage to be constitutional. If there's any branch of government that can put aside bias for reason, its the Judicial branch. If we want to change the character of American political leadership, it should start in November.
3
Thank you, Professor Amar, for your intelligent discourse on the judiciary and the confirmation process. Judge Kavanaugh is a highly qualified legal scholar. Unfortunately the practice of nominating politicized SCOTUS justices, think Bader-Ginsberg and Soto Mayer, was promoted by Pres. Obama and that privilege remains in full bloom. The master Republican strategist, ex-Senator Harry Reid, must be pleased with his decision on the nuclear option.
5
Politics have always been involved in SCOTUS picks. It didn't start with Obama.
The so-called nuclear option has little to do with Reid; McConnell was going to utilize it no matter what. Remember that McConnell was the first majority leader to prevent hearings from occurring at all when it came to Merrick Garland.
And McConnell claimed "The American People" should have a say in the supreme court pick. The American People chose Clinton, the Electoral College chose Trump. As such, McConnell violated his own rule in letting the Gorsuch nomination go forward.
But, as has been abundantly clear, McConnell doesn't care about rules, even the ones he makes up.
3
The originalist doctrine highlights the fundamental weakness of the constitution: it is too difficult to amend it. Why have an amendment process at all if the constitution is so powerfull and perfect that it's original meaning can wisely fit all future circumstances. The originalist doctrine grew out of conservatives' unhappiness with activist judges who made broad interpretations of the constitution to advance a liberal agenda. Now that the justices are saying things like unlimited money in politics is free speech, thay have nothing to say about originalism.
Originalism is a phoney doctrine. It's all just politics. The Supreme Court has become a partisan political institution. Its credibility in the public's view is waning. This dilema probably won't be solved if power shifts back to the democrats, even for a long time. Perhaps the best long term solution is term limits for the justices.
Who says we "can't win"? I recall being told we "couldn't win" on Obamacare either. The Senate has to hear from the voters. If Collins and Murkowski are pro-choice and they will hold fast, the Dems hold together and we get just one more R to flip---McCain, perhaps?--- we could win.
Collins is a cowardly weasel. She and Murkowski will vote with the pack.
3
For those readers with short memories, Akhil Reed Amar previously championed Neil M. Gorusch in an earlier NYT op-ed. Amar depicted Gorusch as another great choice having much in "common" with liberals. Amar wrote that "history may one day judge [Gorusch] as among the best of the century." Does this sound like something a liberal would say?
I'm sorry, Mr. Amar, but merely voting for Hillary Clinton does not make automatically confer liberal chevrons upon you. In fact, your op-eds championing Gorusch and Kavanaugh seem very unlike what a liberal would write.
One is reminded of another law professor named Alan Dershowitz. Much like Amar, Dershowitz always crows how he is "a liberal" and "a Democrat" immediately prior to delivering an invariably right-wing opinion. The act grows tiresome.
17
"A Liberal’s Case for Brett Kavanaugh"
The liberal case against Brett Kavanaugh is better.
7
If this "Liberal's Case" were to be argued before a jury of true liberals, then the verdict would be "Sheer Hypocrisy". Case closed.
5
No one is questioning Kavanaugh's legal bona fides. But you cannot first make the case that judicial appointments are now universally made along ideological lines, and then dismiss this as irrelevant when the nominee has an excellent legal pedigree. It is not irrelevant; it is the core issue.
A great legal mind, chosen for ideological reasons, is not the same as a great legal mind chosen for just that single characteristic. It would be no great feat to identify several equally qualified candidates whose ideology is staunchly liberal. That's not the point, nor should this be the kind of exercise that validates what is happening with judicial appointments.
The process has been turned on its head and, as a result, corrupted. Donald Trump did not search for and locate the best legal mind who just happened, fortuitously, to align with his ideology. He used a list provided to him by an unabashedly ideological organization; his task was then to make sure that he chose the best qualified, least objectionable of these ideologically pure candidates.
Kavanaugh will be confirmed, short of some biblical level intervention. Whether it is by a 100-0 or 51-49 vote is irrelevant. The fact is, we live in an era of ideological dominance in all three branches of government. Offering compromises that would make it seem otherwise --- when it is not --- does nothing to change the corrupt nature of the nomination and confirmation process.
3
We get it, Mr. Amar. He is your friend. A member of your club.
For the rest of us, he will make decisions that :
o- protect Pres Trump
o- take reproductive choice rights away from women
o- further cement the power of $$$ in our elections
o- erode attempts at common sense gun management
o- support the powerful over the not-powerful
For we great unwashed, that'll be a disaster.
Your case, sir, is a crock.
7
Phooey. If Kavanaugh (or for that matter, Gorsuch) had any real character, they would have refused the nomination to the USSC until Merrick Garland had been given his proper hearing. Right is right, and no amount of historical revisionism will erase the great injustice that was done to Merrick Garland and Barack Obama.
3
It's articles like this that underscore why liberals always lose.
3
like most academic approaches, great (well, ok, let's say interesting) in theory, not so good (and no chance in hell) in practice. alas. i don't think we should politicize this (or any other) confirmation hearing. period. it's a mistake and has been throughout US legal history. the pendulum swings. we need folks on the bench from all walks of life, who check their political (and other personal) beliefs at the door to their chambers. this is the essence of judging, and i have no reason to think that Judge Kavanaugh will not be an exemplary Justice Kavanaugh. this is my submission, respectully -- from a former criminal defense lawyer; special prosecutor; civil litigator (both sides of the table); general counsel (and father of 3 who will be around long after i am gone).
1
Another judge from the corporate interests who control the right-wing of the GOP. We are not impressed that he has read some history. Has he read the letters of the men who wrote the constitution? Will he interpret the constitution to insure life, liberty and the pursuit of happiness for all citizens, or just the corporations now deemed 'people' by the disastrous Citizens United decision? Senators in Red States need only remember: most citizens want medical coverage to be affordable, available. Most Red State citizens need clean air, water, good schools, and jobs. Most Red State citizens love their children too. Gay, straight, bi or trans. Voting against this and every nominee put forth by Trump from a panel screened by the Federalist/Heritage/Koch consortium will not hurt Red State incumbents if they explain what is at stake. A President accountable for his actions under the law. A legislature with the power to temper treaties and tariffs that effect our economy. Healthcare. Jobs. Freedom.
1
Once Upon a Time, we Americans were fantastically lucky to have had some brilliant wordsmiths who crafted some excruciating compromises in uncompromising language - hard pointed little phrases that can still pierce our hearts like arrows, ideals still capable of bringing out our better angels. The same words that can sometimes force us to question our past - and our present - continue to give us hope for a brighter future.
When "originalists" try to divine the intentions of Our Founding Fathers, they rather conveniently lose sight of the fact that their intentions were not one huge amorphous blob. They were nothing of the sort.
Each of these guys - James Madison, Thomas Jefferson, Alexander Hamilton, Thomas Paine, Benjamin Franklin, John Adams, George Washington, John Jay, William Paterson, George Mason, etc. - had his own very strong opinions about what our government should look like and the direction in which our country should be heading. In other words, each one had his own intentions.
The only language they could agree on - as beautiful and heart-piercing as it was - left quite a lot of room for discussion; and it's a large part of why we're still (and always will) be having this conversation, at least until we once again take up arms against our brothers.
Isolated individuals already have done just that.
We need to continue our national dialogue without ever forgetting that Our Founding fathers best intentions were, like our own, all over the map.
2
The Courts have become a place for those unable to achieve their agenda through the legislative process to grab a second bite at the apple. Judge Kavanaugh will not support this trend and for that reason, among others, he will be a fine justice.
6
I’m not sure that I’ve ever read a more naive opinion piece than this.
3
By all accounts, Judge Kavanaugh's thoughtful interpretation of the constitution has lead him to feel that the president should have more powers and that a sitting president is above the law. It seems that the experience of Trump's presidency has not altered that. This suggest that Kavanaugh does not learn from life experience. He is unqualified to be a supreme court judge,
2
One must recall that so-called "originalism" is often used as a judicial fig leaf to achieve nakedly partisan political objectives, as in Citizens United, Heller and Bush v Gore.
That great "originalist" Antonin Scalia once publicly opined that proof of innocence was insufficient grounds to stop an execution.
Let's hope that Kavanaugh's "originalism" does not represent what it has come to mean by recent historical example; right-wing radicalism and intellectual dishonesty.
5
Two reasons to prevent this nomination from going forward. 1. The current president is under suspicion of and being investigated for numerous essentially treasonous acts during the previous election campaign, as well as the named defendant in several major anti-corruption lawsuits. There is no justification for him being able to nominate a Supreme Court justice while under possible indictment for numerous crimes, including crimes against the actual integrity of the United States democracy itself. 2. "Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting. Like civil suits, criminal investigations take the President's focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President." [quoted from NPR report yesterday] .
In short, per point 2, Trump has nominated someone who is already on record as believing that Presidents should be shielded from prosecution. Despite Trump's distrustful and dismissive stance toward anyone associated with Bush admin., he has (surprise!) nominated a SCOTUS justice who is predisposed to protect him from the Mueller investigation.
4
“Elections have consequences.” ~ Barack Hussein Obama
1
And how exceedingly good those consequences were and are.
3
Akhil Reed Amar is a professor at Yale Law School. Why should we listen to you? Other articles talk about Kavanaugh’s political connections. Does this identity not darken your visage of him? It bothers me. Political judges are saddled with judicial dishonesty implied.
1
How quick to judge are so many commentators.
And, frankly, how biased the New York Times Picks are,
for the most part, against Judge Kavanaugh.
Let us have the hearings and let us hear what
Judge Kananaugh has to say.
Then make up your "Liberal" mind.
Meanwhile, if Kavanaugh gets turned down
I am more than willing and more or less ready
and I will be more than ready to answer and
and all question put to me by the Senators.
3
I said the exact same thing ...
... about Merrick Garland!
And he wasn't even nominated by someone under two active investigations for conspiracy to subvert our democracy (aka: treason.)
2
One can disagree with Mr. Amar... but, it's daft to attack his credentials.
Haven't people read his scholarly work???
1
Odd how this "liberal" keeps shilling for Federalist Society nominees. (He wrote a piece pushing for Gorsuch as well)
5
Gee. A Yale professor sponsoring another Yale professor.
2
The Supreme Court needs to attend to issues with freedom of speech and I hope this man will do so. We hear of working class whites being shamed or even loosing their jobs for calling police when African Americans act or dress suspiciously, while rich white men can be flagrantly racist, as is of course their right under our Constitution, God bless. But why do we not extend the same freedom to working class whites or at least lower management? I blame the liberals. Freedom!!!
2
Some of those whites are being shamed or losing their jobs because they are attempting to reinforce social segregation. it's not about Black Americans acting suspiciously. It's about Black Americans existing!
We've seen whites call police on African-American children cutting grass, on African-American men or boys walking down the street, on African-American women swimming or having barbecues or entering their own home and so on. There's no evidence that this disdain and hostility is based in class. It's all about race.
2
Professor Amar was born in Ann Arbor Michigan.
So when you write dismissively of "his culture" are you speaking of Midwestern culture?
Low blow, attacking someone for his race.
I don't feel like you, Lilo, are paying attention to my modest proposal. What kind of nation will we have when only the rich and powerful, such as President Trump, are allowed to be racist? Sure, I'll allow that maybe we shouldn't let any citizen be racist, most of them are just takers anyway, but what about the many who are slaving away in lower management, creating jobs and what-not. Can we not at least set them free?
He was nominated to be a right-wing hack and a Trump boot-lick. Let me know when he does anything to alter that fact. Until then, I won't be cheering and doing cartwheels like the delusional author here. If he's no different from Merrick Garland, as implied here, why wasn't Garland given a hearing by traitor Mitch and the Trump tribunal? We know why - all Republicans are lying hypocrites.
4
Really? Would I weigh as the judge of a poetry contest in which some of my closest pupils were submitting? Fine to have an alternative opinion, but from a former teacher? Where is the journalistic objective in this?
This article was cute as a kitten. Bet Democrats never thought of compromising before. They should try it, maybe they'll like the taste?
Note: this is a liberal’s case for Kavanaugh, not a liberal case.
2
This article is satire, right?
4
"Although Democrats are still fuming about Judge Garland’s failed nomination..."
This is a ridiculous statement, it makes it sound like the Democrats couldn't get a nomination through, when in truth (as we all know) the seat was stolen from them because McConnell broke all precedent and would not allow a vote. Yet again, the New York Times, supposed voice of the liberals, normalizes this absurd and dangerous presidency. Did the world need a "liberal's case" for a seat stolen from Obama and chosen by a corrupt president who is under investigation?
I remember when I used to be proud of the New York Times.
4
Trump called the writer's school Yale College. Enuf said.
2
All of this sky is falling rhetoric reaffirms the belief that our government and our Supreme Court has become too big and powerful over our lives. It is a sad state of affairs that in modern day America that most citizens believe that the President, the Congress and the Supreme Court have more power over the direction and success of their lives than they do themselves. How have we gotten to this point that the naming of one Supreme Court Justice makes half the population believe that their life as they know it will be dramatically altered for the worse or the better? Isn’t that a sign that these bodies have way too much power, that our country has greatly deviated from our founding vision? Have we exchanged the despotism a one king for the despotism of 535 congressmen or that of one president or that of 9 justices. Will we ever get back to where the person who controls our individual destinies is the one staring back at us in the mirror? When did it happen that Trump or Obama or McConnell or Pelosi or Ginsburg or possibly Kavanaugh will dictate our happiness and direction in our lives more than we do ourselves or our loved ones? You can bring up Supreme Court cases which can affect the “right” to do certain things, but if that “right” can be struck down by 5 justices was it really a “right”? It certainly was not unalienable. If the court giveth, the court can taketh away. Most Americans want to get to a place where they and their efforts determine the course of their lives.
1
I can't abide by this.
It's not just that I think Kavanaugh has the wrong qualities.
It's that he has demonstrated an embrace of positions that will make it harder for democracies to actually work.
From what I've read, he's selective in how he applies his legal principles. He's against government intrusion when it comes to the environment, but for it when it comes to women's bodies. He's for business free speech, but not for individual free speech.
We've already lived through a court term that has made it harder for Americans to have representation, vote, organize, speak their minds, gain truthful information. Adding another justice who shares these views will likely make it even harder, and ultimately make the US less free.
6
"(Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)"
Of course you were. What else would explain such a fawning endorsement?
5
IF he has a conscience, maybe, but I surmise not. He will stick with the Kochs, who have added their unique brand of dark money to this mix, in his efforts to support legislation from the bench, and it will harm our country for at least a generation. Fight back! Fill the streets. Contact your Democratic representatives, and insist that they knock themselves out blocking this nomination. Volunteer, and make small donations.
2
Your friendship clouds your judgement. You overlook the fact that he's been vetted by the Federalist Society which means he accepts their ideology, otherwise he wouldn't have been on the list.
That means he's anti Roe, anti social security, anti medicare, will uphold any actions from Trump, is very pro corporation and will never rule against them and he believes that inequality is the natural order and man shouldn't try to change it.
6
"Although Democrats are still fuming about Judge Garland’s failed nomination..."
"FAILED" nomination? How about STOLEN?
9
Confirmation hearings have become Kabuki theater.
1
Sorry....but Mitch McConnell has already set the president for this nomination. This is not a legitimate President.
3
Trump has throughout his life surrounded himself with folks such as himself: Manaforts, Pruitt’s and Cohens , which is to say grifters and con men. Is he now suddenly drawn to honorable people?
I sure hope so, but seriously doubt it
2
From the list of 20 judges Trump has to choose from, 19 others are going to be worse than Kavanaugh.
This seat was lost in November 2016. It is time for the Democrats to accept that this battle is lost and get on about winning the war in 2018 and 2020.
So Yale Law School is teaching Constitutional originalism?
Do they also teach Creationism?
What's their position on evolution?
There is no "liberal case" for Kavanaugh. None.
There's a reasonable person's case for Garland, though. Why don't you pen an op-ed on that, professor. Oh, that's right...he went to Harvard.
6
That's certainly one way to get an editorial published in the NY Times. But I honestly couldn't find the supporting evidence.
4
Remember when the NYT told "liberals" they should back Gorsuch, and now we have a Supreme Court that has supported discrimination (wedding cake baker; travel ban); undermined voter rights and unions; weakened pregnancy choice (faith-based pregnancy centers), punted on partisan gerrymandering ... I do.
4
This column was a travesty. We know how Kavanaugh will vote. Republican straight down the line. Women should get all the contraceptives they can now. We're going to have an election in November, brace yourselves for a billion dollar deluge of ugly political advertisements paid for by the likes of the Koch Bros, Mercers, Addelsons, etc...
5
"Women should get all the contraceptives they can now." Yes! Glad this message has been received! They should avail themselves of cheap/free contraceptives that are available everywhere. Make the responsible "choice" ahead of time rather than getting an abortion after the fact.
Hey Prof. where do you stand on whether a President ( who by much of the evidence and indictments close to him maybe illegitimate) can be indicted by a Speical prosecutor?
6
Wait...it requires a “deal” to ensure that the nominee answers all questions??
6
I don't care how brilliant Cavanaugh may be. If he is against women's reproductive freedom, he is a despot whose lack of a uterus leads him to perceive he is the almighty god of name-your-religion.
3
How about just half of the good professor's proposal: require the nominee to answer questions for a change.
Senator Collins: this is your get out of jail free card. You need not torture yourself about fidelity to stare decisis or how virulently anti-abortion the nominee is. You gave merely to ask pointed questions. When he refuses to answer forthrightly — as he will, because every Republican nominee has, since Roberts — you simply decline to vote for him, on principle, because you cannot advise and consent on a nominee who won't discuss his views.
7
An originalist who can change his mind? Quaint.
1
And we now learn that Justice Kennedy got to pick his successor - Professor, where would I find that support for that idea in the Constitution?
5
Lauding the "originalist" in Kavanaugh is troubling at best...we know that our nation has evolved beyond slavery, Jim Crow laws, and other failures our Supreme Court weighed in on. That said, in this corrosive and corrupt political climate we are now living in, we can expect nothing less than a full blown fight at confirmation. And in reality, liberals have precedent, created by Mitch McConnell, in ending any nomination, pending a full exoneration of the Trump Administration now under investigation for alleged treasonous acts. The court has been able to function with 8 justices for lengths of time in the past, this should be one of those times. We have a serious case against the administration for collusion with Russia and various and sundry associated crimes that would render any Trump pick a non-starter until we have another presidential election. Republicans brought this zero sum political game to us in recent decades, and liberals, as the voting majority, can either address it in kind, or roll over and suffer the longstanding consequences of egregious decision making from the bench.
4
The Constitution is concise, and brief, on the role of legislators in choosing Supreme Court members.... .so one may safely assume the farmer's intent was carefully parsed. ..I do agree that in order to 'Advise' it is necessary to take the full measure of the nominee, and hopefully, through individual interviews and focused, non-partisan questioning, and responsive answers on Kavanaugh's part, legislators can serve their finite but essential part of this process.....
1
Trump didn't read any of Judge Kavanaugh opinions or briefs, except one. Where he speaks about the President being immune to prosecution. While rumors of a deal between Judge Kennedy and Trump (both for Kennedy to step down and for his former clerk Kavanaugh to be nominated) will forever cloud Trump's choice, all Trump wanted was a judge who wouldn't force him out of office or to interview with Mueller. Kavanaugh will never recuse himself if this situation arises. Yes, he's a conservative, but we don't have to like him or make it easy for him to be confirmed.
8
I had the pleasure of arguing our differing points of view with Akhil for many years at YLS. We apparently disagree again, but I confine my comments this time to his suggested deal. Don't Senators already have the right to ask a nominee for the Court her or his views on the matters Akhil mentions-- and others as well -- and doesn't the nominee have the obligation to answer those questions honestly? Do Senators currently ask such questions? Yes, though often I wish they were more knowledgable and better able to formulate their questions more precisely and with considerably fewer self-indulgent displays. To be sure many are prone to asking a range of other questions of more dubious merit. Do nominees typically answer in good faith? Given that they are trained lawyers they are very careful and tend to answer as narrowly as possible, but with rare exceptions, they answer in good faith. Whether the asking and answering will get better or worse depends on time, place and culture, not on whether an informal deal is struck -- especially one that can only be enforced by commitment to a set of norms whose absence is painfully apparent in the sad state of governance we witness daily. Were officials' behavior governed by such norms, there would be no need for the deal Akhil proposes. In the absence of such norms, the deal is empty. I am all in favor of turning down the heat in favor of shedding more light; I question whether Akhil's proposal would achieve either.
5
"In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing." I find this proposal naive. The nominee will navigate the questions expertly, and likely be confirmed. His "conservative-pro-business" history will further weaken essential environmental regulations, allow Citizens United to stand, continue to erode consumer protection, weaken unions, push us toward further inequality. The erosion of our checks and balances over the past 18 years has brought us to a dangerous level of descent where the majority of Americans find our government illegitimate.
5
The fiasco of making toddlers appear in administrative legal proceedings, unrepresented by anyone who has reached the age of reason, has debased our nation, and our legal system.
Systematic torture of refugee children entering the US with parents seeking asylum, has debased our nation.
I blame Sanders supporters for thinking that a Trump administration is an acceptable loss, a necessary evil to be able to later control Congress and the Presidency when the country has been decimated by right wing fanaticism.
The country will never decline enough for Sanders supporters to be widely elected into power. There will never be a “popular uprising” in the aftermath of a Supreme Court decision overturning Roe, if it ever happens.
Instead, the Supreme Court will do the bidding of the oligarchs to keep their boots the necks of the 99 percent, and use the Supreme Court to enforce their version of democracy for everyone but themselves.
And this Supreme Court selection assures this for decades to come.
2
Why should Democrats offer a compromise to get this nominee to do what he should be doing anyway? If he can't, or won't, answer all fair questions at his confirmation hearing, then his nomination deserves to tank.
This article says that we should be happy that Kavanaugh has been nominated because he's an "originalist" and because of his credentials.
Those sound like reasons to be extremely wary of him. It's all a dog-and-pony show anyway, because the Republicans and Trump will get what they want and no one can stop them. But articles like this don't bridge any divides or give anyone hope.
America is divided for the next few generations. Buckle in and get used to it.
5
The compromise proposed by Professor Amar is meaningless, simply because part of the compromise is that no matter what Judge Kavanagh said, he would be free to change his mind. It would be a grown-up version of the little kid's game where someone promises something but has his fingers crossed.
Professor Amar leaves out of this column the fact that Trump explicitly - and publicly - promised to appoint only judges who would overturn Roe v. Wade. Further, he leaves out that previous right-wing judges vetted for Supreme Court appointments are clearly doing just what they were put on the Court to do, no matter how absurd.
Under this Supreme Court, corporations are people, money is speech, and the rights of the vast majority of Americans do not exist.
4
This article is titled a liberal case for Judge Kavanaugh, actually it seems like a liberal academics case for one of his favored students. The only "development" I see here is that he thought that it was fine to sue, impeach and remove a Democratic president and now his views run toward an absolute defense of the potentially criminal acts of a Republican president. If I am missing one sentence that argues that this jurist has the temperament or judicial inclination to seriously consider the values of more than have of the country then maybe I need a new pair of glasses.
7
I could have agreed with this opinion had I seen ANY conservative "intellectual" having written "A Conservative's case for Merrick Garland". Where was that plea? It didn't exist because intellectual conservatism does not exist. Fair-minded and fair-handed conservatism does not exist. Compassionate conservatism does not exist. All that exists is the parochial conservatism of small men and small minds.
I am so tired of being told by both sides that I've got to be the adult in the room. Adults are absent on the right. That is apparently the way they want it. They can cheer "Lock her up" in their mob rule rallies but are appalled when a concerned mother, in a measured way, tells off a criminal like Scott Pruitt, or a restauranteur asks the lying poseur Sanders to please leave, or a blood-stained high school girl tells them their gun policies are killing us. This is the non-PC world conservatives claimed they wanted - calling a spade a spade. Liberals should not be afraid of living in the world conservatives created. Conservatives are self-centered, scared, anti-intellectual little men. Conservatives lie, cheat and steal to get their way, and then complain when liberals fight back. We'll, it's past time to fight. This one will be a losing battle, but maybe the stay-at-home voter, threatened by every Trump policy, position, and appointment, will get the message that we are fighting for them and they might come out to the voting booth next time and fight for themselves.
9
This piece is a perfect exemplar for why we should not necessarily give great deference to what law school professors write. Prof. Amar fawns over Kavanaugh’s Ivy League pedigree and large volume of opinions, without seriously considering Kavanaugh’s ideology and what he’ll probably do to us. Kavanaugh is the product of the Federalist Society’s campaign to deregulate corporations, enfeeble government, eliminate abortion rights and restrictions on gun ownership. The fervor to scale back “the administrative state” is a passion to take us back to the laissez-faire days before FDR and LBJ. It is a clear political agenda.
Many law professors live in a fantasy world in which their law review articles are read with devotion. Many of them have barely practiced law, but went into academia to avoid the messy business of clients. Their perspective on how the law shapes our lives is narrow and cramped. It is in this stew that Prof. Amar’s myopic column was cooked.
11
A nominee for any position in government is obligated to answer questions pertaining to his or hers views on issues that will be under that persons purview. There is no comprise necessary. By “offering” a compromise, you are saying that the nominee has no obligation to respond fully. In this case, you are wrong.
5
I would love to see this judge confirmed with 99 votes as long as the democrats make it clear that they are only doing this so that the midterms aren’t fouled by trumps madness. If they play it correctly they can not only take the house but the senate as well and then the work on an amendment for term limits for all branches can begin. This is how they can at last put McConnell out of our misery
2
This may be heresy but after a lifetime of respecting it, I am in serious doubt about the overall wisdom of the Constitution. The Electoral College, conceived partly in the struggle to institutionalize slavery, has proved to be an anti-democratic monster. America's original sin of slavery has come back to wreak its just vengeance on us, as the absolute majority who voted for Clinton watch their country get quickly and thoroughly destroyed. And by the same type of heinous demagogue tyrant the Electoral College, Madison assured us, was going to prevent.
The compromise which made this country a republic rather than a democracy was and is a rotten one, born in slavery. The ancient Romans, who originated the republic, lost theirs the same way we are losing ours, through an anti-democratic constitution. The true meaning of a republic, behind all the claptrap about responsible citizens being a stay on the power of the mob, is that it enshrines the will of special minorities, including mobs, over democratic majorities.
4
We need to hire lawmakers who don't make ambiguous laws. This should negate most of what our SCOTUS does right? Oh yeah, and can we leave religion out of rulings? Thanks!
1
This is more of the millquetoast "Let's give in to the Republicans so they'll be nice to us" rhetoric that has allowed the reactionaries in the Republican Party to push the country back toward the nineteenth century.
Make no mistake. The Republicans are out for blood. Where was their spirit of niceness and compromise when they refused even to give Obama's nominee a hearing? Or even earlier, when they declared their intention of "making Obama a one-term president"?
Today's Republican Party is not the reasonable Republican Party of my youth. It is financed by outright fascists (and I don't use the term loosely), and it has spent 35 years using its own educational system that ranges from elementary school through college, the "non-denominational" megachurches, radio and TV personalities, and now the Internet to create a cohort of disciplined fanatics.
Meanwhile the Establishment Democrats have acted like the ninety-pound weakling who tearfully begs the bully not to steal his lunch money and tries to bargain him down to taking only half of it, while rejecting those who would fight on his behalf. We all know that bullies keep on bullying until someone fights back, and it feels as if no one in DC is willing to fight for us.
The Democrats are supposed to be the opposition party, but who can tell what they stand for if they refuse to oppose bad policies and bad nominees for the sake of (one of my least favorite words) "bipartisanship"?
7
Even more than honest answers about his beliefs which we won't get, I want honest answers about the conversations he had with Trump prior to the nomination.
Did Trump mention his presidential rights to control the Justice Department or special prosecutors? Did the Starr investigation come up, and in what context? Was the word Russia spoken? Was the word collusion spoken?
You are under oath, Judge. That building you aim to occupy says "Equal Justice Under Law" on the front.
5
Strong support for Mrs. Clinton and Merrick Garland do not a liberal prove, so the headline is nonsense. I love how the GOP expects Democrats to take the upper road and play fair and roll over. That's how we ended up mired in Trump world. Well, no more. There's simply too much at stake. Not. going. back.
9
"The compromise I’m proposing would depart from recent confirmation practice. But the current confirmation process is badly broken, alternating between rubber stamps and witch hunts. Unfortunately, a witch hunt is more likely to fit the tone of the current mood in Washington and of reader opinions in this newspaper.
"In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing."
Wait. Shouldn't he answer all fair questions anyway?
WHY NEED AN "ACT OF GOOD WILL" to do so?
10
But in naming the court a partisan body, we all now know how the GOP views compromise....a la McConnell. For Sens Flake and Collins, McConnell either lied or worked against fulfilling his end of the bargain for their votes on the tax bill. Regarding Schumer's request for Garland, McConnell sent a tweet of Micheal Jordan laughing....and laughing (a diss to all of us hoi polloi common folk -- not Schumer.)
Just as Gorsuch essentially lied (I believe in established precedent.....only not for unions), so any legalistic answer can be parsed both ways.
3
Some fair questions:
Should confirmations be based solely on ensuring that a Justice is "someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States"? Do you think it proper that Neil Gorsuch sits on the Supreme Court rather than your current boss, Merrick Garland? If not, would you step aside so that Garland can be elevated to the Supreme Court?
Will you recuse yourself from any matter related to the Mueller investigation?
If Trump is impeached, convicted and removed from office for colluding with Russia in a way that impacted the 2016 election, would you resign as the process that led to your nomination was tainted?
3
A compromise, sort of like Republicans compromised on Garland? Why don't we wait until November and let the voters decide? Oh, because McConnell is a hypocrite. Lecturing 'liberals' on civil discourse is baseless under this administration.
4
Exhibit A of useful idiocy. Student calls professor for job recommendation. Professor obliges.
Key points: Kavanaugh's a good judge because he reads law review articles, and most don't. Lots of judges don't read them--are they bad judges? (Perhaps the academy should be asking themselves why judges don't find so many of their publications to be grounded in reality?).
Kavanaugh was on a list of 25 judges picked by the Federalist Society. Democrats were not consulted--at all. The president is within his prerogative to pick one, but under past practice would usually consult because of the filibuster. That's now out the window, and it's a power play.
Putting aside the propriety of an interest group providing the sole acceptable menu of potential picks, there's now evidence that the whole beauty contest was a sham, and the die was cast as a cost of Kennedy's retirement in an agreement between the two men. Those inconvenient facts are nowhere in this particular navel-gaze.
But let's play along. As he proposes his deal, the D's provide 2 alternative selections and pledge to vote yes for him if he answers fair questions, even if the answers are offensive to those that these senators represent. [itals] Without that pledge, he has no obligation to answer "fair" questions at all. [itals].
I've read some of Amar's work. It's scrupulously researched and thoughtful. But there are some folks who should stay in the academy.
6
If Judge Kavanaugh is denied a seat on the bench, what then? Won't Mr. Trump just move down his list until someone is finally confirmed, thus repeating the drama an indefinite number of thimes? Or do Democrats propose that the seat remain unfilled until a Democrat is president?
1
Isn’t that what the Republicans were doing with the Garland nomination?
Turnabout is fair play.
1
The failure to elect Hillary has catastrophic consequences that will continue to unfold after Mr. Emoluments & his grifters are history. When Kavanaugh is the best SCOTUS nominee from the rights "list", we can only hope that Mr. Emoluments doesn't get a 3rd nominee.
As McConnell & the R's know well, the key to power is winning elections. The success of decades of Clinton, Obama, centrist democrat derangement syndrome propaganda from the the right, the Russians, & the puritanical left gave Mitch, Trump, & their authoritarian grifters the keys to the kingdom.
We must take back the keys. An historic Blue Wave that retakes Congress is our civic & moral responsibility.
3
Enough of this "civility". We are witnessing the destruction of our democracy in real time, while elected officials brazenly engage in corruption, self-enrichment, and the sabotage of the departments and agencies they've been tasked to lead. While the executive branch is under multiple criminal investigations, which may include collaboration with a foreign adversary or treason .
Hanging precariously in the balance are women's rights, the rights and equality of people of color and LGBT Americans, environmental health and safety, corruption of our democracy by corporations and the monied elite, freedom from Christian religious extremism, voting rights, health care, and more.
This article is yet another example of the deeply misguided tendency among boomer aged Democrats to go along to get along, regardless of what horrifying things Republicans do and what norms they shatter in their endless lust for power. It's the moronic belief that we should just allow Republicans to kick us in the stomach until they get tired and want to be friends.
No. I'm tired of being kicked in the stomach. We need to stand and fight, and fight hard, for the things that truly matter before they vanish. We don't need more quislings who are happy to make nice while the world burns.
8
This article is ludicrous at best. The author suggests we bribe the distinguished judge to get truthful answers to questions asked in confirmation hearings. If we can't even trust his truthfulness, how can we entrust him with anything at all?
We are not ALL simpletons, even (especially) after the fact-free months we are living through with the current administration.
3
How unfortunate that even the brightest minds on the left cannot seem to grasp the grass roots realities of American politics.
The calculus was simple. Cornyn and McConell laid it out very clearly, in public. The nominee could not have a record of public opposition to Roe v Wade, because that would risk the loss of Murkowski and Collins in the Senate. It helps that Kavanaugh has earned the respect of the GOP establishment. And it helps that he has exhibited some real fire and brimstone conservatism, in the past. But women's rights and Murkowski and Collins lay at the heart of it. The rest of the GOP caucus can be whipped into line.
Kavanaugh is perfect, in that respect. So, game over. The so-called "compromise" suggested is irrelevant. The Republicans do not need to compromise. They have won. Democrats, wake up. Repeat after me. The Republicans won. The Republicans won. The Republicans won.
1
He might have appointed Merrick Garland. I would have applauded that.
2
As a liberal I do not share your views of Judge Kavanaugh. As a woman I do not share your views of Judge Kavanaugh. Roe vs Wade has been settled law for over 40 years, and Judge Kavanaugh by his ruling against the 17 years old migrant woman seeking an abortion made it clear where he stands on the right of a woman to choose. If Judge Kavanaugh does indeed become Justice Kavanaugh the fate of women for generations to come will be sealed. The fate of those who are LGBTQ will be sealed. Civil rights will be threatened across the spectrum, and with his about face on whether a sitting president can be put on trial will assure that Trump will no longer be held accountable for anything he does or did.
Could we please have a nominee who is non-political and does not vote either Party line, but votes on the constitutionality of a case before the Supreme Court? Judge Garland would have been a superb choice.
5
Professor Amar, your opinion carries a great deal of weight with me. I greatly enjoyed your MOOC on the Constitution and am now pursuing legal studies (in retirement) as a result of that experience. I'm not sure whether the bargain you suggest would work, but I agree that, with a fait accompli nomination like Judge Kavanaugh, it's worth trying for any restorative shift in the way business is done. I disagree with the comments suggesting this kind of measured response is "why progressives lose"--both emotionally charged, radical opposition and measured, rational maneuvering are needed to accomplish lasting change.
2
We need to remember that until the 14th Amendment was ratified in 1868 and 19th Amendment in 1920, and Congress passed the Civil Rights and Voting Rights acts in the 1960s, "we the people" referred only to white men, and originally only those who were property owners. The process of drafting and ratifying the original Constitution required months of negotiations and compromise and was by necessity written to be flexible. Among the Founders, Madison was a slave owner and avid believer in states' rights while Hamilton was a dedicated federalist and abolitionist, but they worked together because both men recognized how essential it was to replace the Articles of Confederation if the new nation was to survive. Jefferson, in Paris as ambassador to France, was absent from the Constitutional Convention, but he was furious that his protege and close friend Madison cooperated with Hamilton on the Federalist Papers to achieve ratification. When Jefferson and Madison served in the first president's cabinet they were intractable antagonists to Hamilton and deplored his influence on Washington. If Professor Amar is a capable legal scholar and historian of the Constitution he and so should his star student should know that "originalism" is not historically legitimate.
7
A consistent "originalist" seems bound to accept a race based system of slavery, as understood by the original framers of the Constitution. If one modifies that position by accepting subsequent amendments then one accepts that the Constitution may need to be changed according to principles not understood or accepted by the original framers.
Is it slavery or freedom?
3
The elephant in the room of Merrick Garland is, of course, that had the shoe been on the other foot there is absolutely no doubt that Democrats would have exercised the same amount of raw power that Republicans did in not holding a hearing.
And remember, as we discuss stalling/obstructing to the greatest extent possible: It was us who set the stage for the "Nuclear Option."
1
The latest generations will never see the likes of a Louis Brandeis. It will be corporate shills serving for decades, and there is nothing changing that. They are being left a legacy that will take them a long time to reverse. The Supreme Court needs a system of term limits put in place. It's too politicized.
6
I like the idea presented. It would be good to hear an honest discussion of the great constitutional issues. But, and isn't there alway a but, could the Senators so accoustomed to gotcha questions and pinning down commitments actually have such a discussion without trying to disqualify the nominee from participation in some future cases?
Given the writers party preferences can we trust that he isn't setting such a partisan trap? He seems to make it plain that he isn't but then what is plain here can and will morph over time. In honor of another Yale graduate, over time, the question will hinge on what is the meaning of "is" is.
Leave it to Yale to find the hairline fracture and exploit it.
2
Perhaps he is a good judge, but the professor's suggestion that in return for support the candidate will "answer all fair questions" is flawed and he should know that. Note that the judge is, of course, a lawyer and we all know the "answers" to these questions already: (a) he cannot comment on previous cases other than they are precedent (b) he cannot comment on future cases that may come before him except that he will leave his personal opinion out of his decision making process. All of which is useless and therefore he would never "answer all fair questions" and perhaps shouldn't. Regardless, the professor does not suggest what consequences should Democrats bring if those answers (if hypothetically given) are unacceptable.
3
If Kavanaugh is such an "originalist," then he should enforce the emoluments clause when it gets to the Supreme court and throw the bum out.
3
"... and throw the bum out."
That is a power of Congress, not of the Supreme Court. Read the US Constitution.
1
I am a student of the Constitution. You may not know this but right now there is a case brought by Blumenthal, Nadler and 196 other members of Congress at the District Court in DC about the emoluments. Read up on that and then comment, please.
AfNY: "... about the emoluments."
If you are referring to the "emoluments clause", Congress enforces that through the political process. Note the phrase "without the Consent of the Congress" (US Constitution, Art. I, Sec. 9).
Thoughtful assessment.
The author apparently is not aware that Kavanaugh is on record stating a sitting President cannot be investigated for criminal activities or indicted while in office. All this debate about qualifications was not even on the agenda for Trump. Trump doesn't read anything that exceed five paragraphs unless his name is mentioned! He want Kavanaugh to protect him from the Special Counsel, Trump is only concerned about saving his derriere from the slammer.
6
"... Kavanaugh is on record stating a sitting President cannot be investigated for criminal activities or indicted while in office."
Where did Kavanaugh say that? Cite a reliable source.
1
It's interesting to actually read Kavanaugh's reasoning that led to his position that a sitting president should be allowed to postpone civil suits until after she or he has left office. He based his opinion largely on Clinton's experience of being harassed by the Republican Party based on civil suits by Jennifer Flowers, etc. Originally he was in support of the Starr investigation, but later, after much study and thought came around to the opinion that Clinton's ability to lead the nation was substantially damaged by the civil suits brought against him during his term of office. Kavanaugh believes that Clinton's time and energy would have been better spent focusing on the issues of the Middle East and the economy - that his primary responsibility was to do what was best for the nation. The civil suits could have been safely put aside until after he left office. In short, the president could have done a better job, and the nation would be better off had he not been subject to civil claims that had no bearing on his ability to perform the job he was elected to do. Ironically, Hillary Clinton might be in the White House today instead of Trump, had Bill not been subject to the suits by Flowers and Jones. Many people formed their bad (or nebulous) opinion of Clinton as the result of her slamming and maligning the women who made their claims against her husband. It left a lingering question about her fundamental honesty in some minds, and rendered her a weaker candidate.
1
So a law professor doesn't think Kavanaugh will be a total monster. Yay, and how about that New York Times providing balance? You know, just the way the Times hopped out there when McConnell stole Obama's Supreme Court pick, when the Times published a ton of work by conservative scholars and politicians decrying how the Republicans were trampling on the Constitution. Wait. No. That never happened. Balance only is necessary for the Times when it means making excuses for Republicans and providing cover for their misdeeds.
5
for goodness sake,Proffessor you sound like Neil Kaytal who vouched for Gorsuch as an open
minded ,fair supreme court justice .how did that
work out? this is why liberals are laughed at
while the conservatives run roughshod over us.
civility, yes. naivety, no.
3
Huuuuuuuuge disclosure.
No.
1
Yale University Law School? That's where Mr. Amar teaches and Judge Kavanaugh studied the law? Both of them -- and I think the rest of us -- would have been far better off had they attended the Yale School of Divinity where they teach something called ethics.
Judge Kavanaugh's opening remarks about Trump last night revealed him to be plain and simple an abject toady and lickspittle far better suited for Scott Pruitt's old job than the Court.
Mr. Amar seems to me to be living in some bizarre alternate universe where migrant children are not being brutally separated from their mothers on a daily basis and the President of the United States -- a well-known draft dodger, tax cheat and molester of women-- is not already keeping himself busy courting Putin, violating the Emoluments Clause of the Constitution and breaking the Ten Commandments, see especially 1, 7, 8 and 10.
And this is what Mr. Amir now urges us to accept a great deal more of?
13
And this is what Mr. Amar ....
1
Please, just don’t. Your personal relationship is irrelevant to the Supreme Court. It won’t save my reproductive rights or other increasingly precarious civil rights protections. It won’t save voting rights or core ACA protections or the air and water that poor kids consume on the other side of New Haven. It won’t preserve a modicum of dignity for immigrants, asylum seekers, or roughed up brown kids on the wrong side of qualified immunity.
This isn’t the time for a “let’s all just get along” moment. (Collegiality and self-regulation in the legal profession is often just window dressing for protectionism and complicity in bad behavior.) Resist the urge to circle the wagons around a fellow Yalie. Judicial temperament isn’t measured in office hours or Christmas cards. It’s in his record, which tells me all I need to know.
Additionally, can we all acknowledge that what SCOTUS needs least is another white Catholic guy? Even CJ Roberts knows the justices aren’t just interchangeable JD-trained bots “calling balls and strikes.” If the legitimacy of the judiciary, particularly that of its highest court, is to survive, genuine concern for demographic representation and diversity must be part of it.
4
"In exchange for this act of good will..." Good will? from America's native criminal class? What a fantasy!
4
There is no liberal case for Kavanaugh.
6
I am extremely skeptical of this opinion piece. On Jan 31, 2017, the New York Times published an opinion piece titled 'Why Liberals Should Back Neil Gorsuch', which used some similar arguments.......what more can I say? The Times should ask the author of that piece, Neal Katyal of Georgetown University, to give an update of his opinion of Gorsuch now. To my mind Gorsuch has been an unmitigated disaster for the United States.
3
Written by a man. Enough said.
1
Statements such as this make all of us women look like idiots.
1
As a woman I find it highly offensive to suggest that we should accept a SCOTUS nominee who not only does not believe in women's rights but would turn the clock backwards by half a century. I will absolutely NOT vote for ANY politician who supports a SCOTUS nominee who wants to put my gender back into the kitchen, barefooted and butt naked. I am NOT willing to make that sacrifice for anything. And I shouldn't even be asked to do that for the greater good. How is violating the rights of over 50% of the U.S. population for the greater good anyways?
5
This is embarrassing and ridiculous.
2
LOL this a real classic. This supreme court is poised to help Trump create a Neo-Jim Crow serfdom state where women are property and this Yale bro is breaking out the "credentials" argument. This reads like an Onion article that got rejected because it took itself too seriously. Any Trump nomination should be fought tooth and nail.
5
Your case seems way more personal than liberal, professor.
6
What utter hogwash---starting with, where on earth in the Constitution does it say Supreme Court picks are made by the Federalist, or any other very, very partisan, self-serving group??
It doesn't take a Constitutional scholar to see the shear lack of empathy, bordering on evil intent to corral others to one's own religion-political tenets is NOT the sign of a good judge! Just a cursory looks shows multiple examples of this egregious deficit of judicial decency! From stating a president shouldn't be indicted or otherwise judged in office to denying an asylum-seeking refugee teen a legal abortion (which was overturned) to being in on the Bush/Gore decision--only a few well known hideous examples of his history--what else don't we know?
And most of all, who's pulling Trump's strings---no one can believe he figured out who to choose all on his own when it's also well-known that he barely reads anything, let alone judicial histories and has the attention span of a fetus-gnat!
6
Kavanaugh is fruit from the poisonous tree. The president is illegitimate and so are his appointments.
5
Amar calls himself a Liberal, and calls Democrats "they", versus "we". So......a Liberal Republican?
1
Professor: You are asking for fairness. What political planet are you on where this "compromise" you speak of, will happen?
"(Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)"
This should have been the first line of this piece! Bad move, NYT!
4
While we're making cases, I would make a case to the NYT not to collaborate with fascists, but I think I'd be wasting my time since they've clearly picked their side. I'll have to settle with keeping the fact of it in the public consciousness, forever.
We won't forget the atrocities your paper, and everyone who works for it, have abetted.
well said.
Well, there you have it Left, "A Liberal’s Case for Brett Kavanaugh," the reason why you're loosing everything unilaterally. Members of YOUR side support the hand that cuts their throat! It's amazing! And his name is "Amar" no less! Hilarious!
3
Except he's not a liberal. Can't you see through the ruse?
1
With "Liberals" like Prof. Amar who needs Conservatives?
2
A thin veneer of legal scholarship and a black robe disguising racism, homophobia and misogynism. A pure anti-humanist.
5
Please don't tell me that this is a good choice for America: Kavanaugh is just another Neo-Fascist Republican who is sure to take right's from woman and minorities to appease the evangelical right that the Republican Party depends on.
5
Yale must be proud to have such students as George W Bush that invaded Iraq on a lie, killing over a million people. And now maybe Brett Kavanuagh who will strike down Row V Wade and make women once again resort to cloths hangers and back alley doctors to end pregnancies.
The Supreme Court is illegitimate since the Republicans stole Obama’s choice of Garland.
.
2
It appears your case is built upon your hubris.
2
Um... I thought the headline above this piece said something about the author being a "liberal"? there appears to have been some mistake, since that's clearly not the case...
2
Haha..that’s adorable. This is basically a letter of recommendation for one of your students. Vague and misleading. He’s just another right-wing extremist, enslaved to corporations while despising individuals. The American nightmare gets wors3 and worse under donald Putin trump.
3
This opinion is nonsense.
It, in typical professorial obfuscation, overlooks the only reason Kavanaugh, among 25 political-hack, right-wing ideologues the Federalist Society and Heritage Foundation had recommended, was nominated by the crook, liar, psychopath and traitor who only a minority of us selected to be president.
That reason was that Kavanaugh is the only one among the 25 who has published writings that indicate he believes the president is above the law.
The disaster nominated Kavanaugh only because the disaster believes Kavanaugh will save his criminal skin. Based on his absurd writings, Kravanaugh might. For that reason alone, among many others, Kavanaugh needs to be rejected by the Senate.
3
The good ole boy system lives on.
4
Ah, yes. Amar represents the Ivy League elite brotherhood congratulating itself under cover of "consummate legal skills" and "scholarly" ways. Drumpf's "classiest move" gives that attitude away right at the top. That the headline says " A Liberal's Case..." is downright laughable. Oh...right, Amar confesses to voting for HRC so I guess that's his "liberal" credential, huh? Nothing about Kavanaugh's opinions on autocratic presidential power. Nothing about his being part of the "originalist" fantasists who interpret the Constitution's "intent" of the slave-owning elite sainted Founding Fathers because, well, you know, "states rights." Of course, that "originalist" interpretation is so principled until it doesn't align, for example, with their rightwing neo-fascist views on women and minority rights, or corporate money in politics as "free" speech . With Kavanaugh joining his co-religionist "scholars" on the SCOTUS, no doubt we'll see an "originalist" version, for example, of that "originalist" decision voiced by Taney in Dred Scott's case. Of course, given the "legal" brilliance of his fellow Yalie and SCOTUS pals, that decision will be wonderfully encased in predictable legalese and "limited", of course. (wink, wink)
8
As a former student of Prof. Amar's, I found both many things with which I agreed in his lectures and writings on Constitutional law, and many with which I disagreed. The same goes for this piece. He mixes reality-based points (Dems do not have the weapons to blunt this nominee) with academic naivete (current ideologue Republicans are going to respond to an 'act of good will' with one of their own?) Prof. Amar has special reverence for the most important sentence in the Constitution – the first one, aka The Preamble. I will believe Kavanaugh shares that reverence when he starts issuing dissenting opinions to tje Roberts Court's overtly political decisions: My guess is he would have voted with the reactive majority on Citizens United.
4
You are aware that the previous administration explicitly argued, in Citizens United, that their interpretation of the Constitution permitted the government to prohibit any non-individual from publishing a book that even mentioned the name of a candidate for federal office a single time if said publication were not completely funded with PAC money? That turns the first amendment completely on its head, where political speech is *more* subject to censorship than anything else.
Political parties are not required by the Constitution, but the whole notion of free association is meant to protect them -- vs. scenarios where attempts at organizing for political reasons results in mass arrests.
As for free speech, had the government prevailed in Citizens United -- well, they had explicitly argued that simply *mentioning* a candidate for federal office was sufficient to result in banning publication of a book by any organization unless it was completely financed with PAC money only. So much for free speech! And to imagine that many opponents of Citizens United argue that the fourth amendment somehow extends to abortion and that the interstate commerce clause *can* be used to justify regulating anything from firearms within X meters of schools or the private cultivation of marijuana for personal use only or domestic violence while the second does *not* extend to individuals...
The amendment process exists as a way to update it.
Merely twisting or ignoring parts of it *without* going through the amendment process is not a permissible option.
I admire Mr. Amar's loyalty to his former student, but his remarks here leave me thoroughly unconvinced that Kavanaugh is nothing other than the product of a relatively small group of extremely conservative lawyers who are thoroughly committed to the 18th and 19th century notions of the Constitution. This is their chance to influence the highest court in the US, effecting the lives of millions of Americans who do not necessarily share their ivory tower views of what the United States should look like. The whole idea of "originalism" strikes me as archaic and certainly more speculative than considering laws and their interpretations as a living and breathing things that describe a modern society and all its foibles. Originalists wish to take the easy way out and believe they can truly understand what the founding fathers really believed and how they thought, as if they had some psionic powers, like in a sci-fi story. In today's America, conservatives praise that approach, but only when it suits them. Would the Founding Father's really believe that a corporation is a living, breathing person? Would they have approved of billion-dollar presidential campaigns? What would they have thought of a Congress that bows down to presidential power, like royal subjects to a monarch? This is what we're going to get in Kavanaugh and the other conservative judges on the court. Their way is paved and the coast is clear, but society will likely not follow.
8
Maybe Kavenaugh's academic and legal credentials are impeccable, and he apparently has a good mind. However, his past papers reflect a perspective that is overwhelmingly appealing to Trump...even greater power & protections than Trump himself had envisioned, and don't seem to support a free and democratic nation. We are very close to an empirical presidency where the president (supported by a do-nothing-to-stop a descent into the abyss) already has too much power and/or is using that power in a very un-American manner. NO ONE, especially a person who is supposed to represent ALL Americans, should be above the law. This nominee's perspective seems to be that the president should not even be investigated. In a crisis (and yes, we are in one) where the very foundation of our democracy, our electoral system, has been and is continuing to be compromised and there seems to be evidence of cooperation from our president's team if not also from him (at the very least, he has lied about involvement), an investigation is imperative. So despite my obvious objections to another declared conservative justice on the SCOTUS, I believe there is a major impediment to his confirmation. Then there is the little matter of what is good for the goose is good for the gander. If Merrick could not even be considered because we were double-digits out from an election, THIS candidate's vetting by the Senate should certainly be put on hold for three months.
6
I don't understand Professor Amar's argument at all. Non-conservatives should relax because the appointee has demonstrated that he now believes the presidency to be more expansive and less accountable than he did when he worked for Ken Starr? And because he changes his mind on issues, and because he reads? Are those really qualifications that should soothe non-neocons?
7
Oh right, I forgot I'm supposed to be grateful that he didn't appoint Jeanine Piro. Anyone but a crazy proto-fascist is fair game.
1
" In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.'
How many times are you going to let Lucy hold that football, Charlie Brown?
7
If Mr. Amar had a uterus, he might see this differently.
7
Question: do you believe the Republicans actually want to win the fight to take away our right to abortion? I don't. I think it's the best wedge issue they've ever had and they'd rather prolong the fight forever in order to stir up their base than "win." The high mucky mucks don't really care at all about fetuses. They just want to hold on to a divisive issue and play it for power for as long as they can. To win this battle would actually weaken their party substantially.
Merrick Garland
6
NOBODY who believes POTUS is above the rule of law and exempt from criminal or civil prosecution should be confirmed to SCOTUS. Disregarding Trump's self-serving appointment of Kavanaugh, his opinions on environmental & consumer protections should be disqualifying. And do we not find it odd there's no question about the op-ed "A Liberal's Case" was written by one of Kavanaugh's Yale Law professors, a man who's routinely hired by the Federalist Society (which recommended Kavanaugh) to write amicus briefs.
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7
I think he will not be confirmed.
1
I think therefore it happens? You do understand that
the dems are a minority in the nominating process, don't you Al? Hope springs eternal.
Wikipedia lists John Yoo as one of his distinguished students.
Yes, that John Yoo, the torture memo author.
2
How, exactly, is this a “liberal case for Judge Kavanaugh”? As I read it, the piece is a case for making those opposed to Kavanaugh’s nomination jump through a series of arbitrary hoops to justify that opposition (to whom?) and to qualify to receive answers to “reasonable” (again, to whom?) questions about his judicial philosophy. And then, appropriately chastened and disabused of their unworthy biases, Senators will eagerly vote for the teacher’s pet, presumably. This “case” nearly fits the old stereotype for Yale-educated lawyers: long on theory; short on reality. Politics ain’t beanbag and elections, sadly for our nation, have consequences. New dressings for the scummy Senate windows won’t help; principled leadership might. The Senate’s Constitutional responsibility is to advise and consent, not to ask “Mother, may I?”
4
With astonishing rapidity, America is abandoning decency, integrity, justice, and the very principles upon which it was founded. The Times publishing this piece aids in the corrosion of the public weal.
3
To the NY Times, the Democratic Party and progressive voters in general, all this angst and ire comes two years too late. I have been expecting this since 8 - 9 Nov 2016. There is no way to correct the failure now. However we might gain a measure of redress, ex post facto, come this November. But I doubt it.
2
Yet another specious argument in behalf of the "best and the brightest" among us. In my day people like Kavanaugh were busily crafting the disastrous strategy for the Vietnam War.
George W. Bush, former president, artist and war criminal, couldn't wait to tweet out his admiration for this candidate.
You Ivy League people sure do stick together, don't you?
3
First, I didn't hear any arguments for why a liberal should be ok with this nominee. What I heard was why his former professor has a vested personal stake in his confirmation.
Secondly, Senate Democrats should pledge to vote yet BEFORE a hearing?? In exchange for him being honest?
What is this?? It's certainly not a liberal's case for anything...
7
This prefab op-ed piece has nothing to do with the law or the constitution or the health of the country and everything to do with a Yale professor looking to burnish his reputation as a legal kingmaker. Shameful.
5
Honestly, I do not know what to make of this latest provocatively titled piece from the good professor. Are readers supposed to be impressed with the confession of being "A liberal" [what]?
After reading Professor Amar's NYT piece; "What Gorsuch Has in Common With Liberals" (March 18, 2017), the current iteration sounds much the same:
A chest-thumping endorsement-verging on the fanatical for justifying an ultra-Conservative Supreme Court.
5
Kavanaugh will learn that Americans do not like their personal freedoms abridged. The first lesson will be in his confirmation hearings in which he will have to admit to his beliefs or lie to cover them up. Trying to shove his right wing ideology down the throats of Americans will not go over well. His rulings will not necessarily change the culture. The people will continue to live as they see fit. Gays will continue to live together and women will still get abortions in one fashion or another. It will be ugly but it will also breed push back.
What won't change however are the regular gun slaughters that result from Scalia and Thomas' Second Amendment rulings. Republicans like Kavanagh will have to live in this society and will learn that trying to be an Occupier has real negative downsides for them.
2
You are a great case in point for those on the left who say there's no real difference between mainstream pro-corporate, pro-Hilary liberals and Republicans.
1
This President is illegitimate.
He was elected through cooperative interference by and with the Russian government.
Those that who support him are traitors and his nominees and appointments must be invalidated.
Other than that, so nice to hear he's almost as qualified as Garland.
6
I’m surprised you are so naive. Do you think for one moment, under any circumstances , this guy is going to tell you anything worth knowing during his hearing?
First, will he recuse himself on all civil and criminal cases involving Trump, his family and campaign aids? He’s already written that a sitting president can not be sued or prosecuted.He would not be an impartial jurist with his preconceived notions. We citizens can’t know about his true feelings on precedent, Roe, the environment, LBGTQ rights, but Trump and the Federalist society knows all this plus Trump knows Kavanaugh will protect him from Mueller and Stormy.
Another privileged white man whose never known financial hardship and suffering to make decisions that make life hard for the middle class and poor. Get out the pitchforks.
4
"He’s already written that a sitting president can not be sued or prosecuted."
Where did Kavanaugh write that?
Alice is lost in Wonderland along with the professor shouting for help.
3
Trumps finest hour? Are you kidding me? A man who speaks like a sewer bilge pump does not deserve the distinction. Choose words thoughtfully and wake up.
5
Basically what Amar suggests is that Democrats rubber stamp an extreme right-wing neo Fascist ideologue. Amar’s claim of liberalism apparently comes with a side of spinlessness and genteel resignation, and is suggesting that Democrats abdicate their responsibility to try and protect the United States and her citizens from the hate and greed driven totalitarianism that is now coming our way. Much like those “liberals” that wrote in defense of Gorsuch, from this article, one has to infer that Amar is just an opportunist looking to curry favor with someone who is inevitably going to become the next Supreme Court Justice.
1
it's quite sad that all you liberal progressives have to be so patently unfair.
Kagan was approved 63–37, Sotomayor by 68–31. Gorsuch by 54–45.
if you think 50% of the country found Kagan and Sotomayor to be fair and balanced you're just ignoring facts. Yet still the senators were somewhat fair on their nomination, something they clearly weren't for Gorsuch. And i expect it will be somewhat the same this time around.
How petty and unfair.
4
"How petty and unfair"?!
Almost 8 months before an election and 10 months before his term ended, Merrick Garland did not receive even a sham debate let alone a vote. Now that was unfair.
Republicans are always implying that they hold the constitution so dear and yet they ignore it when it suits them.
2
Excellent article.
I think PT Barnum said you can fool most of the people most of the time, Foolish in Florida.
1
Fantasyland. The guys got great credentials so lets all get together an sing kumbaya. Risible nonsense.
3
Certainly, you jest? "Liberal"; hardly more like Neo-Liberal.
Spoiler alert: Amar is a professor at the law school. Kavanaugh graduated from.
Birds of a feather do tend to "flock together".
2
This right here is why progressives lose.
4
This is outrageous! A Dem/lefty MUST be appointed to the Supreme Court.
After all, Dems & their army of media cronies love to accuse Repubs of all kinds of things ad nauseam, but ---
1. Dems have a gigantic lead in corruption conviction jail time in the 2000’s. E.g., Dems have 13 of the 14 convictions in the U.S. for 10+ year political corruption sentences!
Apparently, a few sentences later were reduced, and one Dem will be retried due to incorrect jury instructions. However, the appeals court said there still is plenty of evidence to convict.
All of the Dems must be released!
2. Included in the above convictions, Dems’ Detroit ex-Mayor Kwame Kilpatrick is the U.S. ALL-TIME champ for political corruption: 29+ YEARS = 28 years & 1+ year previously! AND 34 cronies got convicted! One got 21 years, but he is not listed among the 14 convictions because he is not officially a politician.
Free Kilpatrick & his cronies immediately!
3. Several years ago, The NY Times reported that Dems have about 75% of pols’ felony convictions in super crooked NY over a 3-decade period.
All those Dems should be pardoned, have their sentences commuted, etc.!
4. University research of Congressional insider stock trading from the late 1980’s to early 2000’s showed both sides cheated. But Dems have a gigantic lead in the House & a moderate lead per capita in the Senate. Dem moneybags Soros also was convicted of insider trading in Europe.
Insider trading by Dems should be legal!
2
This is arrant nonsense. Trump picked him to
protect himself.
What is in the water at Yale Law?
2
Hopefully he will get 49 votes
1
I'm sure soon-to-be Justice Kavanaugh will give Professor Amar's rather fawning Op-Ed piece due weight when considering future clerkship applications by Yale law students.
2
Any 'justice' after Merrick Garland's stolen seat will be illegitimate until that theft is rectified.
1
The only way that will happen is after a successful Democratic wave.
With the calls to 'abolish ICE' and 'go hard left', I don't expect it any time soon.
Call me an optimist but I believe that the elections will be determined more by candidates mindful of the districts that they are running insx. 'abolish ICE' resonates in NYC but not so much in TN. The midterms are really all about getting out the vote.
I was expecting Judge Judy, Pirro or Napalitano.
3
Mr. Amar wrote this unfortunate piece. The Times, however, published it.
3
This isn’t a “liberal’s case.” This is the case of a teacher polishing his own Apple while praising his old student and ignoring the actual political partisanship of that candidate’s decisions.
1
Let's cut to the chase. We know this man will help overturn Roe v. Wade and let states make abortion illegal. Women will die as a result. As to both Mr. Kavanaugh and Mr. Amar, I would paraphrase something once said about a highly cultured but reactionary MP: His words are perfumed but his opinions are poison.
2
Amar's recommend of Kav is as bad as Neal Katyal's recommend of Gorsuch -- "Liberal " legal elite blinded by the credentials I guess and forget the conservs almost always go for the result they want, and dress it up with whatever legal tools are handy --
2
This is legal mumbo jumbo. Kavanagh will join the 4 other "conservatives" to uphold the President's right not to testify before the Mueller investigating team, to allow unlimited political contributions by wealthy and corporate interests, curb voting rights, undermine environmental regulations, worker rights, the Affordable Health Act, corporate and right wing dominance of all major forms of media, and at least a de facto end to Rowe. It's got nothing to do with precedence, strict construction or all the other forms of legal jargon that will be thrown out to justify this pick. It's all about power and money and Kavanagh knows full well who he is beholden to.
3
'Kavanagh will join the 4 other "conservatives" [in hypothetical decisions that I don't like].'
Perhaps, but you seem to have forgotten that Congress writes the laws, so you should be complaining to your members of Congress: congress.gov.
1
Amar's praise for Kavnaugh ignores objectivity as an important judicial credential. Amar can ignore it because “objective" has no meaning anymore as any common notion of objective has been destroyed by cultural wars in politics. Everything is political now. Having likely taken a loyalty oath for Trump, Kavanaugh will merely be another yes-man in Trump's administration.
The rubber-stamp stream of 5-4 decisions is proof that the Justices are ideologically driven. What else prompts their different readings of the law? So why even have hearings now? Just stamp them 5 - 4.
1
The compromise is no compromise but is pure folly. I know this professor is just making a point, but seriously a Democratic Senator can always name a jurist whom they believe more qualified. A scholar like Kavanaugh can still be a political hack. And let's put to rest the notion that some judges are "originalist" and always defer to the original meaning of the Constitution. Those words are always up to interpretation and can be bent to the left or right. It comes down to how a judge wants to balance divergent interests. Looks like the right has won the "message" war and have half the country thinking that only a conservative judge follows the constitution.
9
This is what Jefferson thought about interpreting and amending the Constitution. “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered… institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.”
There is, in my opinion, no room for justices who think they know the “original” intent of those who wrote and voted to accept this constitution as the law of the land. Times change, what we know changes, the needs of the people change, but rights of the people should never change. This group of conservatives, seemingly more fascist than anything else, seem bent on restricting the rights of those they disagree with.
2
Yes, this is a smart man with excellent schooling. He's used those gifts to harm regular people and is being put in a position for the sole purpose of causing greater harm. To pretend otherwise fails to recognize the current danger facing our republic. Publishing these sentiments is not giving a fair shake, it is complicity.
11
SCOTUS is a political body. Kavanaugh will play an important part in any decision about Trump. Trump said that he wouldn't have appointed Sessions if he knew that Sessions would recuse himself from the Mueller probe. Are we to believe that Kavanaugh wouldn't be asked the same question by Trump? Kavanaugh's career goal was to be appointer to SCOTIS. Are we to believe that promises weren't made to support Trump in any SCOTUS case? I was born at night but not last night.
7
> SCOTUS is a political body.
That is what I hope changes. SCOTUS should enforce the law as written. Not what you wish it said. Not what it could have said. Not what your political masters want it to say.
If you want the law to change as regards to abortion, LGBTQ rights or anything else, write it into law. Don't just rely on judges to change it. Or when the judges change, then the 'law' changes.
Laws that are written by congress can be challenged and SCOTUS is asked to rule on the constitutionality of those laws. Judges are appointed by political parties with diverse views and ideology. One side or the other applauds when a judge is appointed that meets their approval.
If a law is to be enforced as written then there is no need for SCOTUS.
Professor Amar makes a curious proposal. Judge Kavanaugh will answer all questions if Democratic Senators pledge, in advance, to vote for his confirmation. It is analogous to a car seller's offering to reveal all the things wrong with a car if the buyer will pledge to buy it anyway. If Senators were to agree, why hold the hearings? Professor Amar's former student would be assured of confirmation no matter what he said.
13
"The compromise I’m proposing would depart from recent confirmation practice." So would mine, in which we have the Unicorn of Justice come from the Ivory Tower in the Land of Make-Believe to decide whether or not the nominee is chosen. That, or we could ask serious questions about things like the Rule of Law and see if Trump and McConnell have picked an articulate accomplice.
10
As close as it is to the election, I believe that the next Senate should decide whether they agree with Trump's pick of Judge Kavanaugh.
Let's face it, no matter how you politicians try to obfuscate it the Supreme Court is a political body---- just look at all the 5-4 decisions and see who the players were. In 95% of the cases it is easy to predict the outcome before it is announced.
No matter how we got where we are, we need to get back to requiring 60 votes to seat a SCOTUS nominee. That way there is a reasonable chance that the nominee will be neither extreme right or extreme left.
11
Democrats should follow Mr Amar's advice and cross their fingers that Mr Kavanaugh turns out more like Earl Warren than Antonin Scalia. Nobody knows how Mr Kavanaugh's attitude toward the law and the Constitution will evolve over time.
The reality is that the democrats cannot change this course of events. The more they wave their arms and pontificate about this, the more they will distract from the seminal issue before the country; Trump's relationship to the Russians.
Some may argue that Mr Kavanaugh may protect Trump from justice should Mr Mueller's investigation provide evidence that Trump should be held accountable for money laundering prior to his presidency and collusion during his campaign. That may be true.
But we are at a stage in our country's history when the American people need a clear understanding whether or not we are a nation of laws or a nation of politicians, oligarchs and everybody else.
Approve the guy and move on to the bigger issue that must be confronted.
5
What could be bigger? This nomination will have generational impact, that is very significant.
8
Why? McConnell changed the course of Obama’s nominee’s event?
2
The Republicans aren’t interested in compromise or balance, as the author suggests the Democrats should now be. If they were, the president* would have nominated Merrick Garland.
9
Welcome to the 19th century.
8
What tortured logic! What a ridiculously convoluted proposal! I have never been so embarrassed to be an alum of that university in New Haven.
12
https://fedsoc.org/contributors/akhil-amar
I'm sure he used that tortured logic to great effect at the last meeting.
I'm probably not going to like anyone that Trump picks. But honestly, it could be worse. At least this guy reads.
7
Good to see the Resistance(tm) in full swing
1
That Tom Riddle is a truly exceptional student, argues his mentor Slughorn.
7
Merrick Garland should still be in the pipeline and should receive his senatorial hearing.
13
Yeah, answer's still no. Reason? Merrick Garland.
And you can thank Mitch McConnel for that, Trump.
3
People with uteruses are really not that interested in your lofty compromise proposals.
14
Oh Lord is this man besotted with himself.
But hours from Trump’s selection and the man speaks of Trump’s “finest hour.”
This is not law and jurisprudence. It is sales by a salesman who gets too close too fast while speaking too smooth. I can smell his breath.
And he has a crucial test for the democrats???? How clever. How gamesmanship.
A corrupt age. Baby Boomer civic elite are irredeemably corrupt.
3
Preposterous! That's my reaction to the author's suggestion. I would expect the judge to answer all fair questions without any "compromise." Liberals are concerned about gun control, abortion, human rights, etc.... This guy is a known conservative --therefore there is no liberal case for Kavanaugh.
The most obvious reason for his selection though, is that Trump has selected a man "who argued that U.S. Presidents should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis." (wikipedia)........You can't make this stuff up.
5
The Michelle Wolf parody was far too kind.
7
"Each Senate Democrat will first publicly name at least two clearly better candidates"? In the interest of fairness, how about just one -- Merrick Garland?
20
Elections have consequences. Thanks Bernie and his fanatics.
This guy is the next SCOTUS, done deal.
5
Ah, it wasn't Bernie who told Hillary to accept those $250,000 speaking fees from financial companies, some of who helped tank the economy. Nor was it Bernie who ran a horribly bland and out of touch general election campaign. I was a Bernie guy and leader, but I started helping Hillary's campaign the week after the convention. Almost all the Bernie people I knew did likewise.
5
Bernie was so powerful! Nothing was accomplished by the Russian meddling and the free publicity given Trump by the Media he pretends to hate? This kind of 'thinking' does no good. BTW, everyone of my acquaintances who were Bernie voters, being conscientious Americans, voted for HRC in the end.
1
Hi,
I voted for Hillary.
Regards
Bernie Fan
2
If/When Kavenaugh is confirmed and sworn, then Judge Bork can rest in peace.
2
Nothing changes in the religious composition of the Supreme Court: five Roman Catholics, three Judaics (possibly all of Reform Judaism), and one on the fence between being an Episcopalian and Roman Catholic.
2
Professor Amar states this nomination is "President Trump’s finest hour, his classiest move." Dear me – as 'fine' and 'classy' as all that?
1
Yale was once one of the world's great universities. Then it began cranking out right wing, Deep State, and occasionally, unbelievably uneducated lawyers cum politicians and executive bureaucrats. Harvard followed suit. The incompetent results were both Democrats and Republicans.
Most of them were from families of privilege and wealth and if they were not, they quickly made that their focus. They were part of the universities' student cults that networked the future politicians who formed life-long, useful bonds of like minded people. Having been a member of one, myself, but at another university, I know how it works.
That bright, elite groups rule a nation's politics is not necessarily a bad thing so long as they serve the interests of the general public. Unfortunately, somewhere along the line the intellectual qualities have shrunk and the devotion is not to the general public, but to the maintenance and promotion of the small class that rules, and thanks to the Reagan Doctrine that the sole measure of success is how much money one makes, our system of leadership has been reduces to the incompetent and corrupt.
So this Yale professor defends one of his proteges. What else is new?
8
Absolute rubbish.
This is about transforming the rule of law into the rule of the Oligarchs. We are now Russia, with a pretend democracy, a pretend rule of law, and with the real goal of government to increase the income divide.
There is no such thing as a good Republican.
Hugh Massengill, Eugene Oregon
17
Did Mr. Amar offer any kind of "case" - or anything at all - for Judge Merrick B. Garland?
9
I heard this fellow mention his priest, his Jesuit background, his god, about 5 times in his speech. The theocracy moves ahead.
19
I was raised catholic, so the first thing I thought of when I heard this appointees name was: "The ghost of father Scalia is very pleased as he roams the halls of SCOTUS."
Bye-bye Roe v Wade, nice knowin' ya'....
"I heard this fellow mention his priest, his Jesuit background, his god, about 5 times in his speech."
You didn't count very carefully. Kavanaugh never mentioned a "priest", and he mentioned "Jesuit" and "God" once each.
Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript
By The New York Times
July 9, 2018
https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-annou...
1
Yes, we heard exactly the same thing about Neil Gorsuch. I have no doubt that people like Professor Amar were insisting that Gorsuch wasn't a right wing tool. Turns out that he was picked precisely because he was exactly that.
Kavanaugh was one of the top deputies at Ken Starr's office investigating Clinton. And it was Starr's office which seemed to condone having Linda Tripp continue to break the law and keep illegally recording Monica Lewinsky. Recall that when Tripp first approached a Federalist Society attorney with her recordings of Monica's sexual encounters, Starr's office has no reason to get involved. Soon after that meeting, Tripp stopped caring about the sexual encounter details and started egging Monica to get the President to give her a job.
Does anyone believe it is just a "coincidence" that Tripp's decision to start egging Monica to get Clinton to give her a job happened right after she met with a Federalist Society lawyer?
Does anyone believe that Starr's refusal to answer under oath Rep.Zoe Lofgren's question as to when his office first knew of the taping was because of a convenient case of amnesia?
It would be good if Kavanaugh had to answer the question that Starr refused to answer under oath. Did he know that recordings of the President's mistress were being made before Tripp brought them to Starr's office in January? Yes or no? If he refuses to answer that under oath, we will know he is not fit to be a Supreme Court Justice.
6
So... Ken Starr investigating a President and searching all around exceeding his original mandate is a bad thing.
While Mueller finding nothing of consequence after twelve months indicates searching further afield is warranted?
You're confirming that it's all political and not about the law or justice.
Akhil can't put down his monocle and leather bound books for long enough to realize that he's allowing his vanity and 'fairness' fetish to outweigh the destruction of the basic rights millions of Americans. This a real classic.
4
Actual tweet:
@nytimes
The accidentally FUNNIEST line you will print this year:
"But Senate Democrats and others who believe in the importance of an independent and nonpartisan judiciary ...."
Were you talking about OUR Senate Democrats?
Kavanaugh has a ton of cases for people to read up on his way of handling cases. By contrast, there was nothing indicating how Elena Kagan would - or COULD - decide legal issues since she'd never appeared in any sort of criminal or other trial. She had taught law and served briefly as the Solicitor General, that's it.
BUT her political loyalty was of the highest quality.
5
63-37 for Kagan, including 5 Republicans. Will Kavanaugh muster that?
If he wanted to, Trump could nominate someone most Democrats and Most Republicans would support. Merrick Garland, perhaps, but there are hundreds of others. Instead, he insists on squeaking by with his 1-vote majority. Too bad he can't suppress votes in the senate, too.
1
Judges who are proudly "originalists" are of the same ilk as Christian churches that embrace the Old Testament and ignore Christ's teachings in the New Testament, when Christ's teachings don't fit their world view.
5
If the constitution is the Old Testament, what is the New Testament?
The writings of Maxine Waters perhaps?
Should I respect law school professors who trained lawyers who thought it was okay to separate toddlers from their mothers and asked these kids to stand trail without their parents? Alas this is what is happening in our immigration courts. Studious? Studious give you a law degree not jurisprudence.
No professor! You and your ilk have failed. That is why we are where we are today.
4
Looks like someone is trying to make sure he will be invited to the swearing in. There is no “liberal” case presented here. This simply reads that the writer is trying to curry favor with his former student. Pretty shameful.
9
Yes, the professor wants an invite to the swearing in and to hear his name praised as a mentor. Shameful - and even more evidence that those who can, do, while those who cannot choose to teach, posture and self-promote.
Prof. Akhil Reed Amar, you are out of touch and dead wrong. Your arguments are that of a man living safely in an ivory tower and who understands not a whit of what it means to be a woman or a member of any vulnerable group in America. This apology of an argument is exactly why we are where we are; why our government has been handed over to utter corruption and the American version of oligarchs. Disgusting.
13
This proposal seems to ignore at least three important facts: first, that candidates for a position on the Supreme Court ought to answer all fair questions, and do so honestly; second, that although it isn't the job of the members of one party to select candidates for the other party, Judge Garland, universally described as an exceptionally competent and politically moderate jurist, could be an acceptable candidate for either party; third, that by choosing first to be both obstructive and discourteous in their refusal to grant a hearing to Judge Garland (they would never have been obligated to confirm him) and to outsource the task of selecting a nominee, the current Republican leadership has, perhaps irretrievably "soured" the entire process.
5
I respect the fact that Professor Amar is a distinguished member of the Yale faculty, but he writes this essay like it's a nomination made by President Eisenhower and not Trump.
These are not normal times. The Gingrich Republicans have destroyed the US. It's party over country. Trump nominated this man because it benefits him and the rich, white corporate men who control this country. The majority of American voters have those votes negated by Citizens United, gerrymandering, the Electoral College and other tricks the GOP has used to remain in firm control.
Hey Professor wake up! This is not the USA of the people. It's the USA of the one percent. Your student is there to serve their interests and not the American people.
11
The fact that Kavanaugh has said that indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis” makes his nomination scary at best and outright nightmarish at worst. Sure, his credentials are stellar, but so are most Supreme Court nominees.
7
Mr. Amar's suggestion is a ridiculous hypothetical, worthy of a Harvard law professor who is so insulated from the real, immediate effects of almost any awful Supreme Court decisions. Case in point: no matter what happens next with the ACA, the gentleman will doubtless continue to enjoy some of the finest healthcare in all the land, courtesy of his employer's tremendous insurance benefits.
No....dirty Kavanaugh up, rough him up, make this as hard for the Republicans as possible. Then get back into office and take hold of the federal court system again. That's all that the Democrats should do.
Scorched earth! No compromises, no surrender, and finally no forgiveness.
4
After reading Professor Amar's disclosure, it was clear to me that the problem with this piece is in the title. I think it is misleading to identify this as a liberal's case, where it appears more an argument of a proud teacher of the new Supreme Court nominee.
5
With all due respect, there is to be no compromise. This nomination must be blocked vociferously, meaningfully, and totally.
45 may have chosen well for his side, but clearly, maliciously and venally.
Sorry, Akhil Reed Amar, you're off base. SO FAR off base that you're out of the ballpark.
4
The Court was lost when Democrats didn't storm Congress to get Garland confirmed. The Court was lost when Democrats didn't get behind DNC candidate Clinton in the presidential election. The Court was lost when Democrats didn't vote or voted for Stein. The Court was lost when Trump was elected. No use crying about it now. Learn the lesson.
3
Mr. Amar's proposal shows just how weird our political world has become. And how tragic.
4
Amar: "Fair questions would include [whatever Amar says is 'fair']."
A legal scholar should know better than to define "fair" with a list of examples. Amar needs to give a *general* definition of what is "fair", so that all possible questions can be judged as to whether they are "fair" or not.
I'll believe Kavanaugh is an originalist when he puts forth a decision that gives full weight to that part of ths Second Amendent referring to "well regulated" and "militia."
4
Well, as long as the Supreme Court rolls back established rights in a way that scholars find intellectually respectable, I am fine with it!
6
Let the Great Liberal Collapse of 2018 commence. If the tables were turned not one Republican would vote for the Democratic nominee. The Democrats will fold like a lawn chair.
3
All that I see in this article is a pompous Yale professor beating his chest because one of his past students made it to the SC. The facts of the matter are that no one can trust this mockery of a president and the nation should not trust his skewed judgement when stacking the deck (court). Because this appointee is credentialed and intelligent does not automatically imply he's good for the nation. trump picked this appointee because this judge is a supporter of presidential powers as well as a friend to big business. As I've said before, our system of checks and balances has eroded to the point where democracy is jeopardized.
4
In what universe are you a liberal, because it is certainly not the one where I reside. A change of heart over his previous belief that the president is subject to criminal and civil liability while working for Kenneth Starr, and then while working for GW Bush he suddenly has an epiphany, and realizes being president is hard, and as such should not be bothered with having to follow our criminal or civil laws, while he or she s president. Is he that stupid, or was his change of heart over the criminal and civil liability of a sitting president more likely based entirely on blatant ideological partisanship.
6
Kavanaugh is an extreme right wing ideologue whose name would never have been put on "The List" by the Federalist Society if he wasn't. He will be a crucial member of the activist conservative majority whose members care not one iota about precedent or stare decisis. He will lie about his adherence to precedent, as Gorsuch did, at his confirmation hearing. Prof. Amar poses as a liberal but his rationale for Kavanaugh, most notably "unbiased judgement," (really, a former member of the Starr Team) and his seeming lack of concern for the disgraceful and unconstitutional manner in which the Merrick Garland nomination was quashed by McConnell reveal his true political affiliations. This piece could have been written by Alan Dershowitz, another Law Professor who masquerades as a progressive by using, what he believes to be, intellectual arguments. Their statements belie their true selves, as do those of Judge Kavanaugh. Will they matter? In the end, probably not.
5
"...in exchange for this act of good will..."
I couldn't finish the column. Have you not been paying attention? Acts of good will, particularly by Democrats in the Senate are ignored.
I don't know the first thing about Mr. Kavanaugh. However, there should never be an agreement which results in answering questions honestly. Raising one's hand and swearing to do so should be sufficient to make that happen.
5
Who is Mr Amar kidding, Kavanaugh will be a reliable vote for corporate interests, for religious zealots and other right wing causes. Trump of course is showing his contempt for Democrats, labor rights, environment, reproductive freedom. There is nothing Democrats can do to stop this, but if they want their base to bother to vote for them they better express disgust and contempt for this appointment and give Kavanaugh the hardest time they can. Mr Amar's weak liberalism, if he is indeed any kind of liberal, helps give liberalism a bad name.
3
The author may be a "liberal", but the candidate is far from liberal, and some of his arguments are well out of the mainstream. Since, SCOTUS candidates do not actually answer questions directed at them, despite the author's pleas to have Democrats ask them, we will not get any idea what Kvanaugh really thinks. Democrats better start voting, or our Republic is over.
3
So Justice Clarence Thomas, for example, being a sitting Justice of the Supreme Court, has "judicial credentials as strong as those of Judge Kavanagh? It's ridiculous statments like this that discredit the message of this piece. Clarence Thomas was not only a man of highly questionable personal ethics if Anita Hill was to be believed to any degree at all, he was a thoroughly unexceptional appellate judge who had no great affinity for "legal scholarship," no "great intellect," no "command of wide and deep respect among scholars, lawyers and jurists." Yet Judge Kavanaugh is his equal in these regards, you say? And in fact the equal of every sitting Justice? What kind of obsequious nonsense is this? I think you meant to say something quite different, but lacked the courage to say it. A pity.
2
If confirmed Kavanaugh cements the GOP hold on our government. McConnell has no respect for the Constitution and it shows in his actions. Trump knows nothing about the Constitution so, to him, what's the big deal?
It seems apparent that Trump nominated Kavanaugh in order to keep SCOTUS in his pocket. POTUS, then, can actually shoot someone on 5th Ave and could not then be charged or investigated. Its as if Trump has been baptized by the GOP and his sins are all washed away.
6
Judge Kavanaugh has a silver spoon resume. He has never stepped off the golden stairway to see how the other half lives. Not qualified.
2
Ah, the argument that we need the great men to tell us what the words mean. Because the authors didn’t mean what they said. This is evil.
“This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions.”
1
" The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill"
The author sounds like someone who just woke up from a deep long lasting coma. Personally the idea of giving Trtump nominee's the benefit of the doubt especially when it comes to confirmations of lifetime sitting judges is i find preposterous. I disagreew ith the judge's politiocal leanings and if I don't show that disagreement now, when? I would like to saee Dems fight this the way McConnel fought judge garland because at this point what do we have to lose. The author speaking of his support for Clinton reminds me of the numerous Trump voters who note their support for Obama, I believe neither.
5
My fellow readers will be better experts at analyzing the substance of these arguments. I am always impressed by the collective knowledge in NYTimes comment lists.
I would simply venture this: "Liberals" (as "we" are addressed in the headline) are frequently enjoined to give a good hearing, open the avenue for discussion, stave off knee-jerk prejudices. This piece does the same, and so many of Amar's points sound quite reasonable.
However, I feel like Charlie Brown faced with Lucy's football. No matter how many times he forgives her and decides to believe that *this time* she really means it that she'll give him a fair shake, Charlie Brown is always humiliated and punished for that trust.
I realize that this conjectural narrative lies outside of Amar's forward-thinking arc. But that's precisely the point.
9
You've articulated the main problem very well.
3
Sorry Amar, Kavanaugh is a partisan extremist who led inquiries into Vince Foster, wrote part of the recommendation of impeachment against Bill Clinton, and worked hard to block the 2000 recount in Florida.
Kavanaugh was appointed to the DC Circuit Court, never having heard a single criminal case.
Kavanaugh rules exclusively in favor of employers, has little regard for separation of Church and State, and believes Presidents should not be investigated.
Kavanaugh believes the CFPB iand Net Neutrality are unconstitutional.
Kavanaugh in short, is a liberal nightmare.
7
I consider Professor Amar’s opinion to be THE guide when it comes to Constitutional law and his opinion should carry weight on either side of the political aisle. His class on Constitutional Law at Yale is a foundational course. Until you have taken the Yale course, it’s unfair to critique the professor. Oh, and for all of you who think Professor Amar an elitist, he has made the course available for free on Coursera.
Kavanaugh dissented in a 2017 case garnering national attention and concern, involving a pregnant, unaccompanied minor immigrant under detention, whom the Trump administration was preventing from exercising her right to end an unwanted pregnancy. Kavanaugh wrote that forcing the 17-year-old girl to continue her pregnancy for so many weeks she risked being unable to obtain an abortion was not an “undue burden.” Conversely, in a 2015 case, Priests for Life v. HHS, he wrote a dissenting opinion calling it a “substantial burden” on religion for a religious organization wanting to opt out of the contraceptive mandate to be asked simply to fill out a five-blank form — name, corporate name, date, address, sign.
“In Kavanaugh’s legal world, it burdens religion to fill out five blanks on a form, but it’s not a burden to force a teenager to carry a unwanted pregnancy. That is alarming,” adds Seidel.
4
So my question is, Can a man who thought Clinton should be impeached because he would not admit to having had a sexual liaison in the White House agree that Trump ought to be impeached for conspiring with a foreign government to subvert the American vote? Or is Mr. Kavanaugh simply a waterboy for Republican politics, which seems to have been the case in nearly every one of his legal decisions?
3
Look: the New York Times once again cowering from right-wingers and trying to show they're fair. I've thought about unsubscribing for a long time; this very nearly pushed me over the edge. Tell me, Professor Go Along to Get Along, why a President who lost the popular vote and is under federal investigation should have the right to nominate someone who will shape the future of America for decades after the President is impeached and likely prosecuted? What is the rush? Why not wait until January?
1
"No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination."
This is what Kavenaugh said at the White House yesterday. Tells us all we need to know about this "superb" nominee's respect for truth.
4
I am a woman. My rights and my control over my own body are in jeopardy. And you’re talking about classy moves? How dare you.
7
Since Judge Kavanaugh cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted, does that mean that he would not consider lashing to be “cruel and unusual punishment”?
I am sure that for all his research and historical legwork, he will still manage to consistently vote with the other four Republican appointees, and that Roe v. Wade will be dead as soon as the court can find a case that allows them to consider it.
1
Full disclosure: you are 100 percent biased and your opinion and proposals for Democrats in the Senate are laughable.
Here are two candidates Trump could have reasonably chosen:
1. Merrick Garland
2.
6
Trump could not have made a better choice. I'm glad the NYT agrees.
1
I think the author is suffering from a case of "he's my guy" instead of looking at Kavanaugh's known history on reproductive rights, religious liberty, separation of powers and executive branch authority, and the Second Amendment.
He's another Alito.
We can predict how he'll vote before he even gets confirmed.
2
Providing cover for the descent of the Supreme Court into an extreme right dark corporatist hole from which it may never emerge is hardly "liberal". Shame on anyone who soft pedals what is happening in this one-party state we used to call America. "Fair and Balanced"...?
4
What do we know about Kavenaugh? We know he believes that Republican presidents are above the law. We know he believes that corporations should be free of legal restraint. We know he believes that politicians should be free of accountability at the ballot box. These are all well established in his decisions and his writings.
But above all we know he will dodge every question posed by senators that he can, and he will lie about every opinion when he must. This is the pattern well established by Thomas, Alito, Roberts and Gorsuch*. Why would this right wing hack be any different?
1
Thank you, Prof Amar, for my morning laugh. Your statement that this is President Trump's "finest hour, his classiest move" almost made me spill my coffee. It's like pointing out that a particular ice cube is the hottest one in the tray.
4
Let's grant that Judge Kavanaugh is, as this piece argues, almost as qualified as Judge Garland. We can't, however, judge his nomination without reference to that of Judge Garland.
Someone steals your horse. Then he comes back and offers to sell you another horse at a reasonable price.
Someone murders your boss. Then he comes back and gives you a new boss that HE likes a lot better (who also happens to be well-qualified).
Someone locks you in the closet to prevent you talking at a public meeting. Then he comes back to lecture you on free speech.
We probably should be grateful, sort of, that Judge Kavanaugh is several cuts above more-typical Trump nominees. But lets not pretend that Mitch McConnell and company are anything other than swamp creatures who will subvert whatever rules get in their way whenever they can.
Would it be saintly to simply let thieves keep their ill-gotten gains and pretend that they have always been were law-abiding citizens? Perhaps. But in politics this only creates incentives to theft.
Judge Kavanaugh is well qualified according to conventional criteria. Unfortunately, though, those criteria were inalterably subverted by those who now appeal to them – and are dragging Judge Kavanaugh and all the rest of us down into the muck with them.
We will never make America great again by rewarding crooks, thieves, and grifters – no matter how respectable their nominees for the Supreme Court of the United States.
5
I don’t care that Kavanaugh went to Yale, teaches as Harvard, feeds the homeless and has a nice family. I care that he fawned over Trump, said Trump greatly respected the rule of law, and was a conservative Republican operative for many years. His speech was like a contestant’s platitudes at the Miss America pageant. He is not another David Souter in the making. He will be a soldier in the Federalist Society’s war on government on behalf of big business and gun owners.
7
The idea that the Senate should make some playground compromise on deciding the fate of a SCOTUS nominee is fatuous. The idea of comity went out the door when McConnell refused to do his constitutional duty and consider Garland. Now you want to play fair? Really?
And as for the ridiculous idea of "originalism" it should be relegated to the trash heap. It is little more than a flimsy excuse for reactionary judges like Scalia to roll back the social progress that had made this nation a bastion of justice - till recently. The framers believed that slavery was acceptable and that slaves were not citizens. Furthermore, women did not deserve to vote. I don't recall any mention of telephones and the internet and DNA testing either. The idea that the founders were writing a document with the full knowledge of what the future may bring or that they intended to would have made them laugh. They were fallible and they wrote a document meant to reflect that. But now the process of amendation in today's world is a total fiction, virtually impossible, so SCOTUS is the last stop. And it's about to become a destructive force aimed at minorities and the social safety net.
8
Good will? Name any Republican gestures of good will. That aside, Kavanaugh should answer all such questions upfront truthfully without any deal now that these appointments are blatantly partisan, and additionally, outrageously, now that a President under investigation for how he attained office is being allowed to nominate long serving partisan judges
In this "deal" Kavanaugh would of course not be making a pledge, but the Democratic Senators would...nevermind the consequences.
Call me angry.
6
Yes, let’s all play nice and agree to gentlemanly deals. It’s not as if the risk is the decent into a repressive state is at risk. It’s not as if millions of Americans could again be treated as “unclean.” We certainly don’t have to worry that the state will once again decide which children shall live and which will die, no matter what the mother’s feelings. Let’s all play nice because it’s all just an amusing intellectual pursuit. More wine sir?
7
Mr Amar lost his argument when he called this appointment Trump's "classiest move". I stop listening afterwards.
With all due respect, I do not think that even Trump supporters can call the guy classy. He is brash, rude, uncultured and often vulgar. And that is a matter of record.
I am sorry Mr Amar, you will have to do better than that to make us believe...
7
PS I don't think he called Trump "classy" by the way. He just said it was a classy action. Nobody thinks trump made this pick himself. He just listened to good advice.
2
Foolish to stop listening, if by that you meant you stopped reading and considering what the man has written. His point was that this is a nominee who continues to listen - continues to study - without ceasing. The widely quoted opinion about sitting presidents being immune to civil suits was, in fact, made after considering the harassment of President Clinton by the Republican Party, while he was still in office. His conclusion, after lengthy consideration and a change of mind, is that the office of the presidency is unique in its responsibilities, and this must be taken in to account when civil suits are brought against the president. He concluded that the country would have been far better off had Clinton been able to apply his brilliant mind to the issues of the Middle East and the economy during his term of office instead of playing cat and mouse with Ken Starr. He should have been allowed to put off non-pressing matters such as the suit involving Jennifer Flowers until after he left office. This would not have freed Clinton from the consequences of his actions - merely put the matter off so Clinton could have served the nation as we elected him to do rather than been harassed by the opposing party.
1
@Todd Fox, repectfully I disagree with your arguments. Words matter and the author called the appointment "classy" more than once through out the article. Why would anybody use such word on this instane. The word simply does not apply. As such, it becomes a false argument.
Secondly, the burden to convince the public that this appointment is good for the country lies on Trump and his supporters. It is not up to people like me to convince ourselves by accepting false arguments.
I am glad this judge is an avid learner but can they assure those of us who remain unconvinced that he will be fair and just? To be continued...
1
I am still baffled how Mr. Amar, the author of this article, feels what he proposes is a compromise.
A compromise is when both sides make concessions. What is the concession that Republicans have agreed to make in this proposal? And without this so-called compromise, is Mr Amar saying that Mr. Kavanaugh need
Not have to answer all FAIR questions? Hummm, is this the type of logic, or lack thereof, that is being taught in
Law school now a days?
3
Trump never does anything that does not serve his self interest. He could not care less about the conservative principles and specific cases related to what most Republicans value. His interest in this particular judge is his view on criminal proceedings against a sitting president. Trump is as crooked as a stick in water and he knows that sooner or later he will need the supreme court to survive. RELEASE THE TAX RETURNS!
3
It appears the good professor needs to step outside his network to get a more accurate perspective.
4
Matthew Dessem, writing for Slate, really hit the nail on the head with his summary of this piece: “None of my rights are under attack at the moment, so I’m comfortable putting someone awful on the Supreme Court as long as he went to the right schools, knows the right people, and enjoys reading academic articles, because I believe ‘consummate legal skill’ is a positive trait instead of a morally neutral ability that can be used for good or evil.”
14
Just having graduated from Yale Law is no recommendation. The very house I live in was owned by Henry Clay Cleveland, a jurist who was also a Yale Law grad (1912) and who was simultaneously the chief federal magistrate in District 7 Northwestern Indiana court here in this city, named after his wife's family, the Hammonds. He got this house by judicial writ, as it was forfeited at his initiative by the builder, for numerous violations of the Volstead Act and for having notoriously associated with Alphonse Capone who frequented the premises. 90-odd years later we are finding spent bullets and admiring the brickwork pocked with .45 caliber holes from those days...
3
Talk about rose colored glasses! Nothing like a faux liberal being given an opportunity to make the case for turncoat corporatist Dems.
Trump has made it clear that he has no respect for the Constitution, the Declaration of Independence or even common sense why would he appoint anyone from whom he hasn’t extracted his oath of fealty? I’ve read many legal journal articles by law professors from highly rated law schools who’s view of women’s rights, consumer rights, workers rights and human rights generally make my blood run cold. This article is a smoke screen for those who wish to pretend that a vote for this nominee is an appropriate act of bipartisanship while they actually want to feather their own nests and leave the rest of us behind.
6
The choice, and it is a choice, to interpret the Constitution as people from the 1780s might have intended, is a kind of evil. Many remarkable jurists have chosen to interpret the Constitution as a living document relevant to today, not the past. Originalist interpretation shows bad judgment - and evil intent.
This article is just another argument that liberals and progressives behave and accept the hatred and animosity the courts will show our freedoms. Lots of brilliant men have been evil and done evil things. We rightly don't celebrate them for their brilliance. We vilify them for their evil. Judge Cavanaugh is a brilliant man with evil intent. Vilify him Democrats!
8
As long as the Constitution is a 'living document' every Supreme Court nomination will be a cat fight. The Constitution means whatever they say it does.
I want it to mean exactly what the words say.
1
So when Republicans refuse to cooperate with a Democratic President who nominates a qualified nominee (Garland), that’s just the way the cookie crumbles? But when Democrats (who, in fact, represent the majority of the American people) make noises about doing the same thing, it’s an appallingly anti-democratic act of naked partisanship?
I. AM. SO. TIRED. OF. THIS.
16
This isn't a law review article, professor, it's the lives of everyone in this country. You lost me at "classiest."
3
A so-called-liberal opinion in the greatest so-called-liberal newspaper tries to say that a judge to the right of Scalia is actually liberal because he looks at history and is a former student.
Sorry, he has a paper trail. Kavanaugh has a record and it is every extreme GOP position, further to the right than Scalia on guns, extremely pro-life, anti-voters rights, for corporations over consumers, believes the president not only shouldn't be indicted while in office but should not be investigated.
6
Your plea that the Democratic minority in the Senate take up the nomination of Judge Kavanaugh with some measure of wisdom--I hear you saying humility without using the word--is a breath of fresh air. While I am no fan of the so-called "originalist" school of interpretation--I find its basic premise pusillanimous--I do not regard it as illegitimate. Rather, the task of recovery of meaning in the past seems rather more difficult than originalists are willing to admit. It might be the better part of wisdom to deal forthrightly with the epistemological difficulties of the undertaking than its proponents are willing to acknowledge. The effort to recover the meaning of words and phrases in the past is a worthwhile undertaking, but one fraught with difficulties. It might be more honest to admit the difficulties openly than to wish them away or pretend they do not exist. The process of thought embodied in the Babylonian Talmud or in the tradition of Hadith, in which decisions are always at best merely tentative, largely resolves the underlying epistemological conundrum, but is foreign to the history and logic of American jurisprudence. The British tradition or, perhaps, practice resolves the issue in the doctrine of Parliamentary supremacy. Perhaps the Justices of our federal Supreme Court ought to be bolder and more willing to overturn precedents? or is the current epistemological muddle to be preferred to that radical rejection of a long-established mode of thinking?
2
The tenor of this article is totally correct. We need to stop the tribal warfare. Both sides need to compromise on the major issues of this country for the good of the country. The article makes a reasonable proposal which should be a starting point for a discussion of a compromise. We also need compromise in other important areas like immigration, amnesty for DACA in exchange for border security. Tribal wars are doing the country no good.
8
While I feel like many of the people who have written in, that fairness had not been applied in the many decisions of the Trump administration, I do recognize the dialectical aspect here presented by the author. In the reality of the situation that confirmation will occur, Congresss can step into a non partisan role that allows the nominee to really show his thinking. I for one would like to hear this nominee answer deep questions and allow his past actions as a Judge to be explored in a holistic way. The author includes the concept that the nominee respects and reviews the law through the Amendments also. Let Congress explore that aspect instead of deciding their views ahead of time.
4
Professor Amar's suggestions on how the Senate might operate reveal the type of unrealistic notions that one might stereotypically expect from a long-time tenured professor living in the ivy tower. They also show how much credence we might give his assessment of his former student. Judge Kavanaugh, if confirmed, will likely be yet another champion of the rights of corporations, the wealthy and authoritarianism. It's why he was nominated.
Professor Amar will likely join the ranks of those moderate friends of Justice Gorsuch as they watch the man who they extolled as fair and impartial, take lockstep votes against labor, voting rights, campaign corruption and partisan gerrymandering.
26
What? A compromise in order to get some one to answer questions honestly?
No compromise should be required for the nominee to answer all questions honestly. Is that not what we should expect any nominee to do under any circumstances?
31
Thank you.
Pretending to know “original intent” of founding fathers is like a preacher pretending to interpret the Bible how god intended. Originalists demonstrate predetermined bias - they use a subjective path to interpret 240 year old documents, letters, and papers to validate narrow-minded thinking, political ideologies, and religious morality. This thinking gave us Supreme Court decisions declaring corporations “people”, money “free speech”, racism “over”, and deference to Christian extremism that discriminates against others. I do not disagree with scholarship and research required to understand the significance and relevance of historical context regarding precedent and law. I disagree with ignoring historical contexts, the Constitution, and common sense that do not fit with beliefs, thus, subjectivity. Created by those thinking there were too many rights and freedoms being expanded for air-breathing human beings, originalist groups represent a backlash to inclusive democracy. The only constant in this world is change and the lack of adaptability can cause extinction. The foundation of American adaptability was and remains self-evident truths. By their own definition, originalists on the Supreme Court could decide a president, who treats refugees inhumanely or who threatens national security or who may have been compromised by an adversarial foreign government, is above the law.
39
"In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing."
Democrats and Republicans have the right to answers to fair questions at all times without prostrating themselves before a candidate. Judge Kavanaugh is seeking to be hired, not annointed, thereby it is on him to interview for the position well.
29
I hope Democrats, of which I am one, will save their energy and avoid an ugly confrontational political debate on this confirmation for the sake of the midterms. In any other environment (pre-Trumpism), Democratic members of our Congress would have approached this jurist with respect and courtesy. True, the Republican Congress, especially Republican leadership in Congress, has failed to act in the mold of Senator Howard Baker - with respect and courtesy. But as Michele Obama said, "When they go low, we go high."
Please Democrats in Congress and Democratic candidates, go high. Look at what is best for the United States and show true character
Vote this nominee through quickly.
We need to save all our energy for the most important fight ahead, retaking the Congress with women and men who know the meaning of civility and character. Yes, Judge Kavanaugh is conservative but the real question is his character. In the most important ways, this gentleman is qualified.
It would help our country for Democrats to show this nominee the courtesy the Republicans were incapable of showing Judge Merrick Garland. We have important battles ahead we need to win for the safety of our country. This is nomination is not a fight worth tearing our country further apart.
16
I disagree. A candidate for SCOTUS who writes a paper which essentially says the President is above the law does not deserve to hold that position in a democratic society. The intent of democracy is that we are all to be treated equally, including the President, otherwise you are looking at a dictatorship or monarchy. The writer seems more interested in bragging rights than the rights of all Americans.
21
Courtesy, sure. Confirmation NO-NO-NO. bad assumption that courtesy translates into respect from the other side in the midterms. It's like Putting laughing all the way to the bank.
3
I am not surprised to see so many reflexly and heatedly disagreeing with Prof Amar's comments. That said, he makes several thoughtful remarks. He would like to see some of the heat dialed back, the Judge Garland mess not withstanding. He acknowledges that someone with conservative credentials is not inherently evil and his tenure will not inherently lead to "reactionary decisions."
I am not a lawyer, but have taken a couple of free online courses offered by Yale and taught by Prof. Amar. I have also read several of his books. People should take a deep breath and listen when a legal scholar outlines a reasoned position that might go against what you would ordinarily expect.
Like most here, I might like to turn back the clock on the Garland decision. We cannot and living in a perpetual state of fury is destructive. I find it ludicrous to think that this single appointment will overturn 40 years of social decisions.
I doubt Prof. Amar's compromise will occur, or that in this environs the outcome would be a good one. I doubt it will get a chance just yet.
2
"Originalist", like other right-wing marketing slogans, is simply a lie meaning the opposite.
Until an "originalist" comes out and stands for the elimination of the political parties in the functioning of the US government, I will believe them to be frauds. They are no different, and in most cases the same people, who use the particular passages in the Bible, or other religious text, to validate and rationalize their beliefs and need to impose them on others.
Parties are not mentioned in the constitution. Not once. Parties are not mentioned for who has majority control of the House or Senate. George Washington himself warned of “the baneful effects of the spirit of party” as he left office.
Somehow "originalists" are blind to the words "A well regulated Militia, being necessary to the security of a free State,". Or find that a "person" is not born but springs forth from incorporation papers, or that speech emanates from a wallet.
And the only acceptable compromise, based on his own words that a president is essentially above the law and that he was nominated by a president under investigation, that he would be excused from any case regarding the sitting president or any president under investigation.
13
Things far more important than what Prof. Amar discusses...
Kavanaugh is an extreme right ideologue. If confirmed every single one of the Republican appointees will not only be conservatives, but extreme right ideologues that will make the Court median very far to the right of the median U.S. voter for 30 more years. It will be like the 19030s all over again, except that it will last 30 years, not 10.
Kavanaugh, as with the other Republican appointees on the Court, has more fealty to the Federalist Society's strange reading of the Constitution than to the Constitution itself.
If confirmed Kavanaugh will have been (1) selected by a President that lost the popular vote, (2) confirmed by Senators that represent perhaps 40% or less of the population (like Thomas, Alito, and Gorsuch), and (3) will produce an extreme right Court majority appointed by Republican Presidents even though the Republican party has lost 6 of the last 7 Presidential elections.
Against all of this Prof. Amar says it is all fine because Kavanaugh is a smart and nice person who reads a lot.
Who cares? There are 10,000 thousand current judges, eminent lawyers, and law professors just as learned and smart as Kavanaugh. And 90 percent of them would be more moderate and would give the Court more balance.
18
Oddly enough, Professor Amar's arguments are strongly in favor of Merrick Garland being on the court. Since Judge Garland isn't and is clearly a better-qualified candidate, I see no reason why Judge Kavanaugh should.
23
High praise for Judge Kavanaugh. However, it does not seem fair to change the rules for questioning a nominee, just because some people believe that Judge Kavanaugh is insufficiently liberal in his thinking.
3
"Although Democrats are still fuming about Judge Garland’s failed nomination, the hard truth is that they control neither the presidency nor the Senate; they have limited options. "
Professor Amar, that statement is incredibly ingenuous. President Obama's nomination of Merrick Garland to the Supreme Court didn't "fail". That nomination & that Supreme Court seat was STOLEN by Mitchell McConnell & the Republicans. Let no American ever forget that.
39
How was the seat stolen? Everyone knew that the seat was on the ballot in November, and the country decided that it wanted a Republican, not a Democrat, to nominate someone for the seat.
By your reasoning, Justice Bork should have been on the court instead of Kennedy.
Professor Amar's point that "several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats" is no doubt the primary reason that Trump picked him.
It is not because of Kavanaugh's positions on abortion or gender rights or marriage or race or the ACA. It is because Trump needs a solid vote of five justices to make sure Trump wins in his battle with Special Counsel Mueller.
If Mueller subpoenas Trump before the Grand Jury, it will be contested all the way to the Supreme Court. Kavanaugh will be the deciding vote to hold that Mueller's investigation violates the Constitution and disbands it.
Kavanaugh is Trump's gold plated get out of jail free card.
59
What are "gender rights"?
1
I have always been suspect of anyone who argues that the Constitution should be interpreted as the original document.
The Founding Fathers did not, in my opinion, intend that to be the case. It's why we have the Bill of Rights, amendments to the originally written document. One of the strengths of the Constitution is its ability to be interpreted and changed.
When I hear "strict constructionalist" it gives me the willies. As for Professor Amar, you need to take a good long look in the mirror. But first, take off the blinders you are wearing because of Judge Kavanaugh's connection to you and of course, your beloved Yale.
I wonder if Judge Kavanaugh had gone to Harvard Law if your defense of him would be so weighted.
27
The Founders intended to perpetuate slaveholding.
Which makes the argument for amending the Constitution all the more relevant.
I agree entirely with this opinion piece. Judge Kavanaugh is eminently qualified for the bench, and it would be hard to find anyone better qualified in the pool of non- Conservative candidates.
Everyone forgets that Justice Kennedy had a solidly conservative voting record until Justice O’Connor stepped down. That said, he was also intellectually honest and willing to consider other points of view on critical issues. Time will tell it Kavanaugh moves in that direction.
3
Not everyone forgets. And please complete the story when talking about the pros, and cons of former Justice Kennedy. He will also be remembered for delivering...to the least qualified president in history...his second supreme court opening. And at the end of the day, what could be less 'intellectually honest' than that.
9
Merrick Garland was eminently more qualified. His nomination was stolen by the GOP in order to place a political ideologue like Kavanaugh on the SCOTUS. He finishes the partisanization of the Court in favor of the phony originalist theory which is a mask for religious interpretation of law.
1
Kennedy is a conservative, and was not about to retire in a Democrat administration. Considering his hard core conservative credentials, Kennedy was reasonable and open-minded.
As the supposed “least qualified President in history” President Trump selected two candidates who everyone agrees are highly qualified. This was no Robert Bork fiasco. You can question their conservative bent, but their qualifications are very strong.
Trump couldn't care less about Roe v. Wade except to please his base. That is kind of a miscue people would take if they want to tackle Judge Kavanaugh's nomination.
Rather, there is a good case to be made that Trump wanted the judge because the latter has argued a sitting president should be exempted from certain lawsuits.
Should the democrats fight the nomination because they are still upset with the miscarriage of justice in Judge Garland's nomination? That is just plain dumb. The dems should wise up. They fight a lousy fight. The Republicans obstructed President Obama because they were ruthless and had the number. The Democrats are clueless without the power. Instead of pleasing their base, they need to take this era of Trump to see how they can enlarge their base, not just to duplicate the Grand Obstruction Party's meanness.
Otherwise, they will remain hapless. The liberals lost 2016 and they should have seen this coming. Opposing Judge Kavanaugh with the usual liberal rhetoric will not win them 2018 and 2020 automatically. They need a better strategy and more coherent tactics
14
What Mr. Amar proposes for the confirmation hearings sounds more like theater than actual inquiry. Everyone playing to the pre-established script: Senate Republicans, it is accepted, will be voting as a unified block to confirm; no questions necessary from that quarter. Senate Democrats are expected to barter for the right to question the nominee and vote as they choose. That would certainly make things neat and orderly, but it's a disappointing vision of advise and consent.
8
Our ire should be directed at the voters who put Trump in office and elected congressional candidates with views that are contrary to the progress we have made over the past 75 years (or since Brown vs. Topeka). Welcome to Democracy. It's still far better than the alternatives. Now let's get out there and do something about it instead of complaining!
19
You cannot be a Liberal and have any support for this candidate, and in particular under these conditions. You may want to ''judge'' the candidate on his record of being a judge at a lower level, but that cannot be extrapolated to the highest court in the land.
Abstract thought about what ifs come true on the Supreme Court, which is now radical and activist. What that means is if a republican President and Congress decide to act in such a way, that the Judiciary is writing the law for them, then any candidate now has to be looked at through that lens.
The candidate is going to have to deal with issues of human rights right away and how much freedom is tied into wealth that might usurp them. The candidate is going to have to deal with right away what exactly the executive powers are and whether said executive is going to be above the law or not. This candidate has hinted at the President is indeed that.
Again, with all of the above, you cannot be a any type of Liberal and condone such thought and the possibility of more extremism that would be devastating to the country and as a an extension - the world.
23
One might have said the parties would have dealt with those questions, Judges may only give answers.
2
Who appointed you the arbiter of who can and can’t be a liberal? Why is it not possible, in your mind, to have a different point of view? Right-wing lockstep bad, left-wing lockstep good?
1
Maybe, if Bret Kavanaugh's wife had written this —
and if she had been a member of the Federalist Society and harbored a secret ambition to be on the Supreme Court — this column might have been more suspicious.
Professor Amar didn’t get where he is today without a knack for applying Mick Jagger precedents to ambient assets.
But the record reveals two naked facts about Bret Kavanaugh that are impossible to overlook. First, that his mentor was Ken Starr; who, if you forgot, wasted the nation’s time on a witch hunt over Bill Clinton’s conduct, that seems, when compared to Trump’s affairs, like puppy love.
And second, that Kavanaugh, has since then executed a winning flip that won Trump over. Brett now believes presidents are pretty much above the law.
Which leaves us with a new Supreme Court Justice who is part Amar, part Starr, part Trump and part Kavanaugh -- whoever that is.
Senators should ask themselves this question: How do you think Kavanaugh will vote when he must choose between special interests and the country's?
Ironically, Trump has me praying. I pray for that the United States has not used up all its allotted blessings. That we can bounce back. That Amar is right about Kavanaugh. Until November, that's all we've got. Prayers.
37
Well, we sure cannot depend on the "advise and consent" of the US Senate run as it is as a highly partisan religious based oligarchy with only the narrow views of the majority allowed to participate.
1
Clinton’s affair with the young intern was during his presidency and during working hours not simply done pre- presidency.
1
And just think of the legal education that us non-lawyers would get, listening to the kind of Senate hearings that Professor Amar is suggesting. Whether we agree or disagree with some of the nominee's thinking, we would certainly benefit from exposure to the thought process, and probably learn much about our Constitution.
7
Mr. Amar, I don't live in a cocoon at a law school in New Haven, I live in the real world.
First, Merrick Garland's Supreme Court nomination wasn't "failed" it was stolen by a craven and power hungry political party leader placing a priority in his personal power than his country's interests.
Second, Kavanaugh's pick was an obvious nod to any case showing up before the Supreme Court where Mueller's investigation may land. Wouldn't it be nice if every prosecuted individual got to pick their own jury?
Third, Kavanaugh takes a radically narrow view of what constitutes an undue burden on a woman’s right to end her pregnancy, as well as the Obamacare contraception mandate.
Fourth, he is a reliable vote against any environmental regulations to limit greenhouse gases.
Republicans (and their SCOTUS nominees) want to be treated by the Robert's Rules of Order but still act like the Marquis De Sade. No more.
76
To the first point: The failure was the failure of the Democrats, led by the President, to keep control of the Senate. Let's own that and move forward.
1
If i'm to be forced to pay for your birth control, could we limit this right to an inexpensive condom (a bike rather than a BMW?)
1
Let's get a few thing straight from the get go. First you don't have to be a legal scholar to realize the US Constitution is, never was, nor never will be perfect. That's why a Supreme Court was created and Amendments were required. In its original form it didn't recognize African Americans as full human beings with equal rights. Include woman in that statement when it came to the right to vote or own land. Second, Supreme Court Justices are political. To think other wise is to bury one's head in the sand. And thirdly, to think the SCOTUS will always be a check on Presidential power, well that is something that remains to be determined, and the present political climate will be its real test.
29
If I understand Prof. Amar, he asserts that Judge Kavanaugh is intelligent and well educated in the law, and that this somehow will make it acceptable when he tries to impose his political and religious biases on the rest of us. I disagree. There is no other even pretended democracy in the world where judges have usurpted legislative authority to the extent that they have in the US. Is it time for it to stop. Do we really want to continue to except a form of government where the law is whatever the current majority (5 people) of the US Supreme Court says it is? Does anyone really think that this is democracy?
There is nothing in the US Constitution which authorizes the US Supreme Court to invalidate duly enacted laws of Congress or treaties duly made with foreign states. The drafters of the constitution were in disagreement about whether this power might be implied. But even those. led by Alexander Hamilton, who thought it might be, viewed it as a very limited power which was always subject to established precedents and was never viewed a power of judges to legislate. Does anyone seriously think that the founding fathers ever contemplated that 5 judges would claim the right to make major public policy decisions for a nation of over 300,000,000 people?.
Judge Kavanaugh is just another politician who wants to back door a political agenda harmful to most Americans.
34
You are correct that There is nothing in th Constitution that says that however the 25 years post 1787, Marshall’s innovations and drive for judicial review forever altered how the Court was viewed and understood.
Professor Amar is right about this judge and about the process. Elections have consequences and the intent of this President or any other Republican to name conservative justices was clear from th beginning. I am gratified that Kavangh is deeply experienced, intellectually curious and historically adept, all things that this President is not. I suggest Dems concentrate on winning elections at every level with a message of economic and political liberty fit for the 21st century. Now that would be an accomplishment.
3
Thank you for the reply. As a matter of history, neither Jefferson nor Andrew Jackson accepted Marshall's unsupported claim of the right to review congressional acts, and the next case that did so was over 50 years later under Taney, one of series of the court's racist decisions made made both before and after the Rebellion, which at the end of the day gutted the 14th Amendment for decades. Your argument about the justices being appointed by an elected president might have some merit if the judges' term of office was coterminous with that of the president who appointed them,and not for life. But the notion that the dead hand of Donald Trump will continue to guide fundamental policies in America (web neutrality, abortion, and the bonapartist view of the scope of presidental power) decades after Trump leaves office is not only obviously anti-democratic, but ridiculously bad government under any system, democratic or not. I don't know what Prof. Amar teaches but I certainly hope it is not constitutional law. The role of judges in a democracy is to interpret and apply the law with intergity and without fear of favor. Any judge who interjects his religion or personal politics into his decisions has committed a fundamental breach of trust and is unfit for judicial office.
I think we can walk and chew gum at the same time
Of course the nominee should be asked about whether past cases were correctly decided:
Dredd Scott
Brown
Roe
He should also be asked "What makes America great?" I'd like to hear all of our politicians and our current President answer that question.
11
The author seems to think ‘qualifications’ have something to do with the Senate approval process. What a quaint idea! The truth is that Senate confirmation hearings are now used by Democrats as a fund-raising exercise where nominee ‘qualifications’ are of no concern.
14
You mean like the GOP's regard for Judge Garland's qualifications?
This ‘proposed compromise’ for Senate confirmation hearings on Kavanaugh has one insurmountable flaw: your current crop of Senators have been demonstrating a woeful absence of the ability to compromise.
9
This article is essentially an absurd call for civility that overlooks a fundamental reality. The Trump "justices" are being installed under altered rules. What is the place of civility after the Republicans have invoked the Nuclear Option?
With this grotesque, those chosen by this tainted process are tainted - as are the decisions they will make for decades. Consider them the Lance Armstrongs of the judicial branch. Their ascension is the product of what is the equivalent of doping. For this to be legitimized instead of vehemently rejected reflects the overall corruption that is now the new norm.
37
Dems need to look in the mirror first - that stain of a Senator from Nevada, Harry Reid is the cause of your upset. Reid did for the Senate and procedures what Obama did for the Party, thoroughly destroy and hollow it out. Schumer and co. Have no one to blame but themselves for their current emasculation.
1
Not just flawed politically (post-Garland obstructionism) but also dangerously disregards impact of a Justice Kavanaugh on progressive social justice causes - from women's right to choose to voting rights to environmental protections. Not opposing Kavanaugh will be betrayal of liberal values.
29
Sigh. Yet another of those "let's bend over backwards, disregard our reasonable doubts, and make concessions to those politicians intent on taking away our vote, congressional representation, and right to be heard."
Then, as our democracy is weaken by disenfranchisement, bullying, and greed, we can look down on the unwashed masses and explain, "We did not think it fair to the Republicans to "complicate the proceedings" that deprived your lives of joy.
41
Sorry. I have been down this route with other Supreme Court Justices. They always have a liberal friend who thinks they are great. They have senses of humor, and can be charming some times. I don’t think the guy is a monster. He is conservative though, in a way that will stop much progress that needs to happen in this country. I don’t want him on the Supreme Court.
53
So, the author knows Judge Kavanaugh and says he is a thoughtful originalist and the second best judge credential-wise and is. Does not seem like a good choice to me.
6
Truth is Trump could have nominated Hilary Clinton to the court and he would be bashed by the so-called Left. Kavanaugh is a high quality candidate, its hard to dispute that.
11
So was Merrick Garland.
Amend the constitution to give a fixed maximum judicial term (15 or 20 years anyone?). That is one step towards overcoming the "generational" impact concerns and gives the justices a known period (provided they live that long) to make their mark. It seems absurd to have term limits on Presidents and not the ultimate arbiters of the law.
10
Didn't the Left just denounce Poland as fascist for implementing this very policy?
1
Of course, Trump’s classiest move is not exactly a high bar to top.
Can anyone even give an example of Trump making a classy move? Finally admitting that Obama was born in the U. S. after years of lying about it? He was so classy he did not even bother to apologize for his lie.
24
I am sick and tired of this nation regressing this past year and a half even as all other nations move forward and adapt to the times. Who ever heard of a President and a White House that advocates against innocent children. This President has not only separated children below five years of age from their parents, but in his latest bit of malevolence has promoted formula milk over breast feeding. Such a man's nominee is suspect. I don't care if he is from Yale or Harvard. It is pretty obvious to me why Trump has chosen him over others: his opinion that a sitting president shouldn't be indicted. This President is currently under investigation for collusion and shouldn't be allowed to even nominate unless we have Mueller's report.
McConnell didn't even allow an up or down vote for Garland, who was Obama's nominee. The Gorsuch seat was stolen. And hopefully someday in some way we will be vindicated for that.
I understand that McConnell controls the Senate and a vote now is inevitable. Let's hope the Dems stay united and get this nominee to actually respond to the tough questions and not hide behind legalese and say that he can't comment on stuff that likely to come before the court some day.
21
This is an argument from an ivory tower where illusions about the founding fathers paint today’s world in the same color, white and with the same perspective, male. I would have dropped out of law school if this philosophy and point of view was where and how the arc of justice was bending. By the way, seeing Trump as anything close to positive speaks for itself as democracy goes down.
23
there is no liberal case for kavanaugh. he will continue the court's assault on american democracy and he will be another reliable vote to protect the rights of the burgeoning american oligarchy above all other things. he should be opposed.
24
I appreciated this perspective from someone who knows the legal system and the nominee, notwithstanding the frothing at the mouth in the comments.
10
There should be 60 votes to confirm a Supreme Court Justice so that a more balanced and moderate candidate will be selected. But of course McConnell changed that!
And yes Hillary won the popular vote by 3 million despite Russian emails, Comey's inappropriate intervention just before the election, and 30 years of Right Wing innuendo against her. If it weren't for the absurdly archaic electoral college she would be our inspiring First Women President! She would be selecting the Supreme Court Justice! Just a tragedy and so anti-democratic!
11
Harry Reid led the way by removing the 60-vote requirement for Federal judges. At the time, McConnell told Reid it would come back to haunt him.
17
Yes, yes, when they go low, we go high. That worked in the last election.
11
I propose a new slogan: When they do low, we kick their teeth in (figuratively of course). No more laying down, no more being over backwards, no more using high-fallutent soaring rhetoric to 'go high.' It's time to fight on all grounds. There is a semi-legitimate coup by insane people happening right before our eyes.
2
Amend the Constitution to require 2/3 Senate approval.
6
good luck with that! you won't see 2/3 on any topic for as far as the eye can see.
You?
A liberal?
And talk of the sanctity of original intent?
Talking about that idea in such a way is like talking about the letter "A" as if it was the sole letter of the alphabet.
The federal constitution is nothing if it is not a progressive document. As Lincoln said with such preternatural insight, it is not a suicide pact - it is capable of being changed, and it has been changed - several times. The idea of freedom has evolved, not stayed the same. Our union is not the union it was. It has evolved. It has progressed. It has become more perfect.
People like Kavanaugh don't subscribe to this - that is part of their danger, Their emphasis on original intent ignores the greater truths expressed in the establishment clause - that the goal is always forward, forward, to achieve that more perfect union-not some damnably ante-bellum, dead-on-arrival version with relics like the electoral college still remaining extant in it, thanks to which we have the walking, talking, and tweeting constitutional crisis that is this administration.
Alas. If you truly believe this, you know nothing at all, have learned nothing at all.
36
Originalists would reply: change is fine, but how is it decidided? And which direction should we change, and who should decide?
They would say: change should come by actually changing the law, enacted by Congress or by state legislatures, and by ammending the constitution. The alternative, having unelected judges unilaterally changing the law — by adopting new interpretations to old statutes — is undemocratic.
Brilliant!......Why don't folks get the idea of amendments..... Another way of saying.....It seems we haven't thought of everything.....hmmm
Brett Kavanaugh is no better qualified than Merrick Garland was. But now Mitch McConnell is calling for partisanship to be put aside in the nomination process.
You've got to laugh. The man has more hide than an elephant. Too bad we don't live in his ideal world. What goes around comes around, Chickens come home to roost. It was ever thus.
21
Even if the Garland nomination had been put to a vote, the Democrats would have never had the votes to confirm him.
4
So...?! I'd rather lose a competition than be excluded.
1. Many GOP senators voted for Garland before, said he was qualified, and implied they would vote for him were a vote held.
2. If they were confident, the political cover having hearings would have gotten them would have been well worth it.
3. Regardless of 1 and 2, what the GOP did was beyond all reason and precedent, and by most definitions treasonous.
4. To be as nonchalant as you about such extremism, such disregard for the country's norms and well-being, and such disregard for the people who will be harmed by these insane conservative justices.
Maybe - maybe not. We'll never know, will we? That SC seat was stolen.
Never seen a hollower case for a candidate to the SCOTUS. Not sure I should be angry or disillusioned about the fact that a Yale Professor can't substantiate his support. The guy seems to be completely ignorant of the fact that SCOTUS decisions have a real impact on people's life and especialy of those people who depend the most on the protection by the law.
35
These are the kinds of people elite law schools tend to produce. Republicans hate all of academia except for these kind of corporate shills that are churned out by the ivy leagues. These people aren't dumb by any means, but they are selected because they tend to see the world in (usually simple black and white) ways that advantage the status quo. It's really quite sick. Additionally, law degrees are the easiest terminal degree to get now... PhDs in public policy, Philosophy of law, etc. These people are probably infinitely more qualified. We used to pick the most qualified people (governors, senators, etc.) , and they weren't limited to judges from 4 law schools which imbue neoliberal ideology into their students.
2
It's clearly a very serious, thoughtful nomination that has never been made in such detail or with such care.
3
The time for fair play is over. This is a fight to the death. If Garland is even comparably qualified then he should be the nominee.
14
That's not how it works. Take a class in US government. The Senate has to advise and consent. They didn't approve Judge Garland. They wouldn't even consider him. If you want your choice for a Supreme Court justice, you have to win both the Presidency and the Senate. By the way, fair play is not what politics is all about. It is a blood sport. The Republicans have won again. You really mean a fight to the death? Because if you do it could well be your own political demise.
3
The Senate never had an opportunity to approve or disapprove Judge Garland. That right was stripped from them by the Senate majority leader. The fact that the Republican Senators went along with McConnell's power grab is their shame and our sorrow.
"cannot do all the historical and conceptual legwork on his or her own"
Aye, there's the rub. Who does it for him? Who has done it for him in the past?
When he adopted the legwork of those who now push him forward, are we to think there is no connection?
Are we to imagine he really might suddenly adopt someone else's legwork and act quite differently?
He was put there by people who spent a lot of money to get him there. He got some of that money, in the form of jobs and support. Now he delivers. That is quid pro quo. That is corrupt.
The basic system of maintaining a bench of judicial nominees is inherently corrupt. Only one group does that. It is a radical conservative thing.
If this guy is the least bad among them, it is still a good opportunity to draw a line on the practice itself.
7
Nonsense. Law schools are bastions of hard left political agitation on the taxpayer's dime. The Federalist Society is a drop in the bucket in comparison. And they, in contrast to feckless academic activists, are quality scholars.
They also practice a moral bipartisanship not practiced by leftists. Their debates are actually intellectual contests, not dumb propagandizing.
The reality is that we are going to end up with this one or one who is worse. Better to think strategically. Concentrate instead on the upcoming midterm elections and the House. Sometimes a gambit is the wisest choice--or the only choice.
9
I agree. Kavanaugh seems to have a brilliant legal mind. And a pretty good sense of humor. For the Democrats to appose this nomination on narrow political grounds will only hurt them. I know Democrats are still a little raw about Mitch's treatment of Obama's nominee, but that ship has sailed. There is no good reason not to confirm Kavanaugh.
7
Senate Judiciary Committee Democrats might want to focus on the question "Why should you be appointed to the court rather than Merrick Garland?" More qualified? No. More experienced? No. More knowledgeable? No. More respected as a judge? No. Oh - ideology. Yes.
So this has nothing whatever to do with the niceties of legal scholars that Mr. Amar writes about. No, it is about the elephant in the room that Mr. Amar tries to pretend is not there while promoting his protege. Kavanaugh is being nominated to cement extreme-right-wing ideological control of the Supreme Court. That is the only reason he and not Garland is the nominee, and that -- not what a good boy, good scholar, and good protege he is -- is the only thing we should be discussing.
56
You are a sore loser and a bad sport. You are the one who sees the Supreme Court as a political entity. Kavanaugh is eminently qualified. So was Garland. But Garland is not up for confirmation. I am a liberal also, but before that I am someone who agrees to play by the rules. If the Senate confirms this nominee and I am sure they will that is just the way it works.
All due respect to the esteemed professor, but seriously? Welcome to the New World Order. Where Judge Kavanaugh’s past may indicate he may well follow precedent and leave Row v. Wade intact, the future of government checks and balances on institutions who willfully pursue power and profit at the cost of lives and the environment is over.
21
On the surface he would seem to have impeccable credentials, but in reality he was vetted and approved by the Federalist Society. His opinions are extremist and promote the Republican agenda of pre New Deal corporate power and the Religious Right's social views.
He will use his originalist intent doctrine to further the extreme radical right's policy objectives. He was a prodigy of Ken Starr and has an expansive view of Presidential power that would insulate Trump from Justice.
I think no liberal can be happy knowing that the Supreme Court will be controlled by the radical right for a generation and will subvert the rights of a majority of Americans.
32
Antonin Scalia was confirmed by the Senate 98-0. Really. That is what should happen when a President nominates someone to the Supreme Court that is obviously qualified.
However, after Senate Democrats successfully opposed an obviously qualified nominee, Robert Bork, we have had to endure the theater of Democratic opposition to conservative judicial nominees. Ever since Justice Kennedy announced his retirement, the latest version of this play has been well underway.
Any serious person knows that Brett Kavanaugh is qualified to be on the Supreme Court, and that eventually the Republican Senate will confirm him. Senate Democrats certainly know this. But, once again, we will have to endure two months of posturing before the inevitable happens.
I think the Democrats' strategy could well backfire. Come November, they may wish that the vote to approve Brett Kavanaugh had been 98-0.
15
A review of the Bork proceedings will demonstrate that Robert Bork's nomination was sidelined by Robert Bork's own record. And, of course, he's not the only Supreme Court nominee who didn't make to the Court; he's just the one Republicans have chosen to complain about for a couple of generations. There's nothing in the Constitution or our political history that requires a judicial nominee to be pre-approved. I was surprised to find a Yale law professor making that suggestion.
1
Robert Bork fired Archibald Cox at the conclusion of the Saturday Night Massacre.
1
Yes, Kav has excellent legal credentials -- But his history is that of a committed Repubican partisan,i.e., major member of the Ken Starr team, rep' d Bush in 2000 recount fight & was Bush II staffer for a number of years -- This is why his two prior nominations had great trouble -- He has no place on the US Supreme Court, we don't need more of this --
37
The ‘notorious’ RBG or Elena Kagan weren’t dyed in the wool Democrats?
This is a great idea. The problem is that very few in the senate have the intellect to either understand the proposal of evaluate two additional judges.
3
Finest hour would suggest that he has had fine moments, classiest suggests that he has behaved in a classy manner at all. Supreme Court picks are controversial for a reason because they are implicitly biased and the votes reflect the individual biases. Agreed comments suggesting that appointing one who has actually done some lawyering and who has seen the impacts of these laws on the people might be a refreshing change. But alas, that will never be..... I think I give up....
3
Good intentions, some good reasoning, some bad.
Apart from the historical blip of Merrick Garland, it remains that Trump is building a formidable legacy of SCOTUS picks. Both Gorsuch and Kavanaugh are simply unassailable on credentials, and only questionable on the usual suspect of ideology. Well, if that were such a concern to detractors, they should have been more careful to assure a more favorable outcome to their interests on 8 November 2016.
So both of those chains of reasoning are solid. But while the advocacy of more light and less heat Mr. Amar undertakes to flog for Democrats to vote the presumption of a president’s right to name a justice absent indications that s(he) is either not mainstream or judicially incompetent, while quite admirable by my own lights, is a waste of time. Democrats will vote overwhelming against Kavanaugh, purely on ideological grounds. My own belief is that he will collect well-over the 51% of Senate votes he requires, but it won’t be the overwhelming number Mr. Amar urges.
Now, consider another Trumpian possibility. Trump is re-elected, and during his second term BOTH Ginsburg and Breyer announce their retirements. Trump replaces the first with another originalist and textualist with credentials equivalent to those of Gorsuch and Kavanaugh. But for the second, since the Court now will be VERY solidly conservative REGARDLESS of that last choice, he nominates (wait for it) … Merrick Garland. Historical wrong righted, if a few years late.
6
So, your argument is that the problem is not that the Republicans stole a Supreme Court seat, but that the Democrats did not sufficiently plan for Russia interfering with an election?
There’s no doubt that the Democrats made mistakes, and Hillary was weighed down by 30 years of Republican lies about the Clintons, but she won the popular vote by over 3 million. If the Electoral College were not skewed towards nearly empty states (why in the world are N. and S. Dakota two states?), and California woefully underrepresented, she would have won easily, despite all that.
BTW, Justice Kennedy was confirmed in 1988, a presidential election year.
39
Leave N Dakota alone. Poor windy frozen place most of the time. they need some respectable thing to hold to since the state tree is a telephone pole.
HG. Sorry Russia did NOT steal the election. Queen Hillary and the 'one candidate China style approach' of voters are lucky enough to get to approve the Elites choice but don't actually let the voters choose themselves is the reason the Democrats LOST and election they should have won.
Such irresponsible McCarthyism and scapegoating of everyone else on the planet as well as the sabotage of Sanders and PROVEN hacking of our ally Merkel by the Obama administration completely eviscerates any potential moral advantage the Democrats now claim to have.
Despite my life long voting Democrats (since 1980) I find them today to be as repulsive as the GOP with added hypocrisy, contempt for the voters themselves (uneducated deplorables who know nothing and should not be allowed to vote etc) with both being a danger to liberty, the Constitution and democracy. No more 'super delegates' either thank you. It is not the citizenry who are the problem but our entrenched Elite; GOP OR DNC
Professor Amar should be requested to write one more commentary after the expected, extensive public debate takes place about this nomination. With the help of NYT, I hope he can explain various issues in a simple common-sense language, enabling the general public to judge matters more calmly and objectively. If we are lucky to have this attitude from top to base, America--and the world(?)--wins!
4
"...I hope he can explain various issues ..."
What "issues" do you have in mind?
Let Democrats consider jumping through hoops to find reasons to vote for Trump's nominee.
Let's consider, when have Republicans jumped through hoops to vote for a nominee from a Democratic President?
The last time that occurred was more than a century ago.
Mitch McConnell and the Republicans in the Senate made sure a Democratic nominee was not even discussed in an open committee meeting.
NO good can come from Democrats going out of their way to cooperate with Trump and Republicans in the Senate. NONE.
50
Ruth better Ginsberg was approved by the Senate on a 96 to 3 vote.
No one who was from the Right had to jump through hoops to justify voting for her, even if he disagreed with her politics. RBG was already internationally known for what she had accomplished for women here in the USA when she was nominated.
No dice, Professor Amar. He ruled against a young immigrant in detention who wanted to abort a pregnancy. Women fought (and died) for the right to control their own bodies. LBGTQ rights were also hard won. We cannot regress back to the dark ages to satisfy Trump's evangelicals.
75
I appreciate your well informed opinion and take some assurance from it. I am hearing a giant warning bell however. You mention that Judge Kavanaugh has learned from past mistakes by seeing that he misunderstood the presidency while working to help impeach Bill Clinton—but, is that true humility? Or a setup for a possible Trump impeachment proceeding? Something to question certainly.
13
"Showed flashes of greatness because he admitted he made some mistakes in his younger years". That is your criteria for greatness Professor Amar? Seriously? Kavanaugh is a standout candidate for the Federalist Society that believes in whatever the Republican Party believes at any particular time. As such, his vote to support whatever Trump and the his deep right wing supporters want is pretty much guaranteed. Choice, separation of church and state are pretty much going down the toilet with your 'great' former student.
28
What a strange article. I get that you think he's just so, ah, swell. But it's weird to suggest that the Democrats promise to vote for him and THEN get to ask their specific questions. Don't you think that's putting the cart before the horse? Weird...
32
Wow, what a lovely Job reference. Too bad something similar couldn't be used for the seat the GOP stole from Obama. A change is gonna come, and Collaborators will not fare well. Seriously.
29
I don’t think many people have any doubts about what neoliberals would do to those who disagree with them if they’d had the power to do so. This is precisely why so many people work hard to make sure you never have that level of power.
"A change is gonna come, and Collaborators will not fare well"?
Just what we need as the antidote to Trump -- a Reign of Terror!
2
A horrible piece; fawning and divorced from reality. While I expect Mr. Kavanaugh is decent enough in person, that is very far from relevant at this point.
McConnell Radically Broke the senate. That is relevant. Garland should be on the bench. That is relevant. That he is not must be addressed and redressed. Restoring the senate can't happen until McConnell is gone at a minimum. Until that happens Nothing should or even can be normal. Democrats playing nice in this scenario should cause riots. Democrats should not be stupid. They should be attacking McConnell, for the American people, in addressing Kavanaugh. They should be putting the brokenness of the senate on parade.
Originalism is just an excuse for activism of a sort. Were the founders originalists? They wrote the constitution and turned around immediately to start amending it a year or two later. Did they expect the issues they were addressing and how those were "framed" would be or should be the standard over 200 years later? Were they drawing on 200 year old standards to apply the their present? It obviously would not the grand experiment if that were the case. It would be some form of monarchy with some parliament thrown in. Originalist means rhetorician sophist obscurantist with socially conservative activist intent. It is a bad and dishonest thing. He should call himself a socially conservative judicial activist. As all federalist society lawyers and jurists are.
43
Excellent comment. Climate change and rapid advances in AI are just two examples of issues that require anyone but an originalist on the bench.
12
Maybe it is time for the legal profession to have its populist moment. Come on, conservative rabble rousers - doesn't it infuriate you that at the end of the day Yale and Harvard get to say what is just and unjust? You know in your hearts what is good and what is bad! And what the constitution says...
And now we know that Kavanaugh reads law review articles. That alone should be enough to get a thumbs down from the populists. Anyone?
9
Ithaca also-ran envy?
How can it be trumps “finest hour”? A guy retired and he is supposed to nominate someone, it’s his job. He has hundreds of positions not filled. How’s that for an executive? Image a company with hundreds of divisions running without managers. That poor business and poor leadership. I guess it’s par for a small handed cheater at golf and someone who has bankrupted a casino and himself (5 times). Why should dems vote for any nominee? Make them own it 100%. I’m still not sure what’s payback for the stolen nominee.
19
Really, do we need more Yale and Harvard Law members on the Supreme Court?
10
Fairness? Fairness left the building a long time ago.
19
Your whole-hearted backing of Mr. Kavanaugh doesn't carry much weight because you have very strong personal reasons to see him ascend to the highest court in the land. What a coup for your university to claim a SCOTUS seat. Please give us a true liberal's justification for accepting this nominee and urging a vote to nominate by ninety-plus senators. Could Trump have put forward a worse candidate? Yes. But the GOP's contempt for all citizens -- as seen by the handling of the Garland nomination -- doesn't deserve applause or even support from Democrats. The Court has been stolen, a move McConnell still brags about. And with more and more signs of Trump being an illegitimate president put in office by Putin and his meddling minions, the election also is tainted to the point of undermining any credibility for a Supreme Court picked by this demagogue in chief. Welcome to the dawn of post-Democracy in the United States.
23
Are you really suggesting that Brett would do anything different if he could go back and redo what he did in the Clinton case? If so, I have a bridge for sale.
15
With the exception of the current justices...
You lost me.
9
No Democrat who opposes any Republican nominee should be required to name alternatives. That is utter nonsense.
35
All 49 Democrats who oppose any Republican nominee can easily name an alternative: Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland, Merrick Garland.
Mr. Amar's states that he "strongly supported Hillary Clinton for president." "Strongly." Huh. This reads a lot like people who go around saying, "Some of my best friends are black [or Jewish or whatever]."
If Amar had written that he had voted for the Democratic candidate for president since say 1992, I might be persuaded that his thoughts here have value.
6
This nomination is going to be confirmed; the Democrats cannot stop it. Therefore, it seems that they should let the confirmation take place after minimal debate. I say this because there seems to be a substantial number of Republicans who are not entirely happy with what's happening within their party and will probably sit the mid-term elections out. Mid-terms generally have a smaller turnout than the general elections anyway. If, however, the Democrats launch delay after delay in this confirmation, it may just be the one issue the Republican leadership needs to unify their party, and get Republicans to the polls in large numbers. A unified Republican party is not what I want to see in November.
4
While I appreciate the writer’s attempt at the high road, we are decidedly on a lower path when it comes to judicial nominees for our nation’s highest court. Kentucky’s senior senator placed us on that road during Obama’s final year in office. Given these new norms the Senate Democrats’ job is to extend our current president the same courtesy as the previous president was received. Block this nomination procedurally, with arm twisting, with public campaigns, and with whatever else it takes to give themselves the best chance to maintain or improve the ideological balance of the court towards one favoring their beliefs. After this most recent at the high court it’s time to end the charade that respect for precedent or the facts of a case guide these political appointees with the title of “justice” more than the president who appointed them.
8
There is no liberal's case for Kavanaugh. There is only a liberal's FLAWED case for Kavanaugh.
The U.S. Supreme Court lost its legitimacy with McConnell's unconstitutional theft of the seat of the Judge Garland nomination.
Thomas Jefferson also started as a strict constructionist when he became President. He soon learned it wasn't possible. In addition, as a politician, Jefferson had to deal with the consequences of his decisions. Supreme Court justices don't.
American law is based on English Common Law. The concept behind that was that the distilled wisdom of many cases of the same type would yield what was fair in future similar situations. Drop by the Honors History classes where I was taught this.
There is nothing "strict constructionist" or "originalist" about how English Common law works. Apologists for the the greedy and power-lusting in our modern era use those terms to disguise the legal reasoning that strains to justify favoring the wealthy over the working American; to justify side-lining fairness.
You might also recall that when the Supreme Court ruled against President Jackson regarding the Cherokee Indians, Jackson ignored them and retorted, "What army are they going to do that with?"
The American majority and so inclined states can say the same to our now twice illegitimate Supreme Court. We and our democracy will survive. The majority of people prefer fairness to white-spite fascism.
25
Liam,
Is you a professor at the University of Wyoming.
"White - Spite Facism " ?
If hearings had been held for Judge Garland
do you really think he would have been
confirmed as a Justice with the Republicans
in charge ?
Why is the second nomination of a possible
Supreme Court Justice - illegitimate ?
1
Judge Garland was more qualified. What happened to him? I'd like to see a nominee who worked in the trenches as a lawyer, not a clerk or politically appointed judge or political hack bending to the whims of his current employer. How about an appointee who went to Michigan Law and defended indigent people and immigrants before moving from State Court to the Federal bench?
We've really had enough people from Yale in this government, haven't we? We need strong intellectual and moral people who have real experience representing individuals in disputes who have developed empathy for the human condition as it fits with the law. Justice T. Marshall was one. Kavanaugh is not.
23
Please allow me to be sacrilegious.
While Prof. Amar's fealty to legal scholarship and advocacy of his pupil is commendable, it simply does not appear to me to be the case that the opinions of the justices are simply based on their honest, dispassionate understanding of the constitution. I don't understand the law but do have some understanding of statistics. Most of the really pivotal cases split down the middle in 5-4/ 6-3 votes on highly partisan lines (I do realize that a large number of adjudications are more lopsided). For a very wide range of cases, the strongest correlation with how a justice would rule is whether s/he was appointed by a Republican or a Democratic president. I don't think law schools teach Republican or Democratic versions of the law. There is only one constitution, the same set of framer's and a single set of history and context behind it. However, there appears to be a HUGE latitude on how it is interpreted. In other words, we are not talking physics here.
This is why Prof Amar's plea to simply submit to higher scholarship and credentials appears disingenuous. Supreme Court today, unfortunately, is a very partisan institution and that is how it must be treated. To not do so would likely destroy lives.
31
The Supreme Court is a supremely political body. Mr. Dooley said "th' supreme coort follows th' iliction returns," but since Bush v. Gore, followed by "Citizens United", and now the upholding of extreme partisan gerrymanders, the election returns follow the Court,
The duty of the Senate to advise and consent, or not, must cnsider the political balance of the court as a whole. Any nominee sent by the Heritage Foundation and the Federalist Society, added to the reactionary bloc in place, would move the Court majority so far into right field they would need tickets to get into the ballpark of Equal Justice Under Law.
8
Prof Ammar has, since his days as a Yale undergraduate, always been a clever and persuasive man. This article is a case in point. And, yes, the steps that he recommends for repairing the "broken" confirmation process are reasonable and practical. Mr Kavanaugh's unwillingness to offer his views on previously decided cases during his hearings, would be to perpetuate a long-running farce and to show contempt for the American people. There is, however, a fatal flaw to Prof Ammar's argument. Does he really expect us to accept the idea that only women and men who have studied at Yale Law School (or Harvard Law School), clerked for a United States Supreme Court justice, and served on a Federal circuit court merit appointment to the Supreme Court? The narrowmindedness and absurdity of this idea beggar belief. When will we see another Justice O'Connor, a state court judge before her nomination to serve on the Supreme Court, or another Justice Powell, never a judge on any court before his nomination? Some of us still remember these justices very well. Your response, Prof Ammar?
6
This is the mainstream media at its finest—gift a national platform to someone to opine on a critical issue despite an absurd and blatant bias.
I know nothing about Kavanaugh; he may be everything that Amar swears he is, but gee, do you think Amar might have a vested interest in seeing one of his former students sitting on the Supreme Court for the rest of their respective lives?
If I want an objective analysis or opinion, the last source I'd go to is one with obvious incentive to lie, omit, or otherwise color her/his response. It is a sad state of affairs that so many major news outlets have made this practice par for the course.
21
You had me right up to the "family" disclosure.
Very Trumpian. All that was missing was a few misplaced superlatives.
5
So the "liberal's" case for this guy is that he offered a "powerful defense of presidential authority to oversee federal bureaucrats." Oh, fantastic. So we can have a justice that rubberstamps Trump's attempts to destroy the EPA, the CFPB, the FBI, and every important federal agency. Brilliant, Prof. Amar!
9
By the people and for the people...NOT. And the only barrier to PROTECT the people has now crumbled.
3
In a just world, no one who worked in Geo W Bush's White House would be employable anywhere in America, certainly not for a lifetime appointment to the highest court in the land.
The Times' embrace of contrarian views has reached absurd levels. No liberal should support this nomination, and no liberal should pen encomiums to this nominee. It's disappointing.
12
This says it all:
"Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School."
That should have been front and center, not buried in the piece.
4
Name two better alternatives? Er...
Merrick Garland and Merrick Garland?
Professor Amar’s “negotiation strategy” cannot soothe those wounds and seems like a foolish gimmick. We need to recognize that it is nearly impossible to block Brett Kavanaugh’s appointment to the Supreme Court; therefore give him a rigorous but fair and respectful hearing. Let’s focus instead on winning in November.
3
You lost me in paragraph 2 when you shout out your 'liberal cred' because you supported Hillary in 2016.
Is that supposed to lull me into a false sense of confidence in your opinion? Am I to give your opinion more credence because clearly you're on the liberal side?
Choosing Kavanaugh, with a very well documented record of conservative 'activism', is DT and the Republicans (particularly McConnell), aggressively sticking it to the Left with no concern for shame or governance.
No more placating the right.
They may still get what they want - a huge loss for people who believe in a secular country and equal justice under the law - but we should NOT make it easier for them.
4
The learned professor writes that he is a liberal since he voted for Obama and Clinton. However, he promotes one of his favorite students to the court which would result in devastating consequences for many liberal policies and for the poor, the sick, immigrants, LGBT. A liberal would care more about the consequences of their actions. A liberal you are not Sir.
10
All the Democrats ought to vote no to any nominee who is not Merrick Garland.
And, they ought to say that this is the reason.
10
How can this man be apolitical and be true to justice when he said that he was "honored" by Trump?
Heard the Cabinet who all said that they were "honored"?
Just like Kim who is "honored" by his toadies,
this nominee is "honored" by Trump.
The danger signs are there to be read and seen.
20
These readers'
comments are remarkably narrow-minded,
petty and superficial responses to a substantive,
smart assessment by one law professor of
a colleague with a similarly brilliant
legal mind. Platoons of Times' readers just
can't get beyond "Trump" and "reproductive
rights," and the like. I also wonder how many of these
commenters have Kavanaugh's scope of community
service and meaningful personal contribution
to the welfare of others, instead of meaningless
marches and protests. These are mean-spirited
attacks similar to those recently launched in readers'
comments against another truly fine human being, Dr. Charles Krauthammer.
7
Both Krauthammer and Kavanaugh well deserve the opprobrium heaped upon them, notwithstanding Chilon of Sparta’s dictum that we should speak no ill of the dead.
Both hold philosophical positions which demonstrate partisan hackery and absolutism crossed with fundamental intellectual dishonesty and lack of empathy, justice, and both evince utter disregard for the rule of law where it conflicts with their ideology.
Both have been intellectually dishonest for decades, cherry-picking justifications for their arguments while in service to current dominion its GOP ideology.
1
Not only did he say he was "honored" by Trump, Kavanaugh went Full Pence and said he was "humbled" at having been selected by Le Roi Soleil. With equal parts servility and cant he's off to a great start.
And why is the Times publishing an opinion piece like this? Do we really need to hear from another member of the Old Boys Club telling us what a brilliant choice Kavanaugh is?
I think not.
1
Someone needs to ask Kavanaugh what he thinks should happen to his and Gorsuch's appointments if Trump is found guilty of working with foreign powers and treason? Will they do the honorable thing and step down?
19
Did the republicans play nice when given the opportunity to support a widely respected scotus candidate in Merrick Garland? There is waaaaaaay too much at stake to play nice. It's more than just Roe v Wade. Voting Rights. Gerrymandering. Workers' Rights. Marriage Equality/LBGTQ Rights. Affirmative Action. Obamacare/Affordable Care Act. Immigration. Travel Ban of 7 nations. Environment. Gun Rights (aka responsible gun legislation). Citizen$ United. Mass Incarceration/Criminal Justice System Reform. And so much more.
To let these issues go down without a fight?!! Dems may lose but at least go out swinging. Let the rest of us learn to elect reps who are not beholden to big money and who have the courage to use their voice power and position to truly represent those who elected them.
14
Mr. Amar wrote last year in support of Neil Gorsuch's nomination: https://www.nytimes.com/2017/03/18/opinion/sunday/what-gorsuch-has-in-co... He is not a liberal, and it's ridiculous that the paper allows him to roleplay as one for these ridiculous, contrarian defenses of Trump's nominees. Almost as ridiculous as allowing "originalist" judges to pass off their conservative politics as a principled legal doctrine. Kavanaugh is the final piece of a majority conservatives have assembled of young and deeply ideological justices which will restrict Americans' rights for a generation. If liberals have any chance of fighting back we have to start by recognizing that the fix is in, and not cooperating with conservative picks just because they have "impeccable credentials, [and] great intellect." The federal judiciary is stuffed with clever people, and the obsession with clerkships and Ivy League degrees helps keep the Court in an elitist bubble. Senators who support the right to abortion, the right to organize a workplace, and the right to elect and be governed by an effective United States Congress need to wise up.
10