Dems Should Drop Delay Tactics & Evaluate Kavanaugh on the Merits
Judge Kavanaugh is one of the most qualified individuals to ever be nominated to the Supreme Court. He has demonstrated integrity and influence as a judge on the D.C. Circuit. Kavanaugh understands that the judge’s role is to apply the law as it is written, not to impose his own policy preferences. He is a textualist when interpreting statutes and frequently resorts to history and tradition when interpreting the Constitution.
He has also demonstrated a keen understanding of economics and economic regulation. In his 12 years as a judge on the D.C. Circuit — considered the second-most powerful court in the country — Judge Kavanaugh has authored 307 opinions and joined hundreds more. These are the most relevant materials for assessing Judge Kavanaugh’s fitness to serve on the Supreme Court, and they provide a more than sufficient basis to complete such an evaluation. By attempting to obstruct and delay a well-qualified nominee, Senate Democrats are attempting to play election-year politics.
The first delay tactic from the Democrats was to claim — following Majority Leader Mitch McConnell’s refusal to consider Merrick Garland during a presidential election year — that the Senate shouldn’t confirm a nominee during a midterm election year either. But the Senate has never operated like this. Justices Kagan and Breyer were confirmed in midterm election years, in addition to many justices who served before them. Whatever one thinks of the Republicans’ treatment of Garland, it is not relevant here.
Now, Senator Schumer, the Democratic Minority Leader, is attempting to delay the hearing by demanding millions of irrelevant documents during Judge Kavanaugh’s time as Staff Secretary in the White House. In that capacity, Kavanaugh certainly left a substantial paper trail. An enormous volume of documents “circulated through Kavanaugh’s office”; that is the nature of the job. But most won’t tell senators anything about him, his judicial philosophy, or his fitness to serve on the Supreme Court.
The Chairman of the Senate Judiciary Committee, Senator Chuck Grassley, is leading a very transparent and fair nomination process. Senator Grassley has requested up to one million documents and is giving senators ample time to review them. Senators already have access to over 17,000 pages from Judge Kavanaugh’s questionnaire, along with his over 300 judicial opinions. That information is the most relevant to evaluating his fitness to serve and it provides a more than sufficient basis to do so. Democrats seeking more information can and should meet with Judge Kavanaugh and ask him questions about his judicial philosophy.
Judge Kavanaugh graduated Yale Law School, clerked on the Supreme Court, served in the White House Office of Legal Counsel, and has over a decade of experience on the D.C. Circuit. Senate Democrats have ample time to meet with him face to face, question him at his confirmation hearing, and review the largest set of documents ever produced for a judicial nominee. Instead of pursuing delay tactics, they should do their job, review Kavanaugh’s qualifications and opinions, meet with him to discuss their questions and concerns, and evaluate him on the merits.
Joshua Wright is a professor of law at George Mason’s Scalia Law School, he is a former FTC Commissioner.