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The Journal Gazette

Wednesday, July 11, 2018 1:00 am

Scrutiny of Kavanaugh must affirm independence

Washington Post editorial

Judge Brett Kavanaugh's nomination to replace retiring Justice Anthony Kennedy on the Supreme Court comes at a tense moment.

It could drastically shift the court's tenuous ideological balance, and it comes not long after Senate Republicans disgracefully blocked President Barack Obama from making a court pick in his final year.

More than ever, the court is in danger of becoming viewed as an instrument of politics rather than an independent, nonpartisan branch of government.

That is why senators must be even more exacting than usual when they evaluate Kavanaugh.

They should insist on a justice who would rule with modesty and genuine independence of mind – and a willingness to resist abuses of power by this and future presidents.

Kavanaugh meets the basic qualifications for high court service. A Yale Law School graduate who clerked for Kennedy, he has served for 12 years on the powerful U.S. Court of Appeals for the District of Columbia Circuit. The country certainly could have expected worse from President Donald Trump. Yet Kavanaugh came from a list of potential nominees preapproved by conservative activist groups. Their goal is to tilt the court as far right as possible as quickly as possible.

Trump's first nominee, Neil Gorsuch, was, in his confirmation hearings, the least forthcoming Supreme Court nominee in recent memory. Kavanaugh must do better. Fortunately, he comes with a huge record.

On hot-button questions, Kavanaugh has trended conservative on issues such as abortion, indicating a narrow view of what constitutes an undue burden on a woman's right to end her pregnancy, and the Obamacare contraception mandate, though his take on the mandate was somewhat more conciliatory than right-wing activists would prefer.

A nemesis of the administrative state, he has frequently voted against the Environmental Protection Agency, arguing that programs to regulate greenhouse-gas emissions and cross-border air pollution went further than the law allowed; in each case he took an overly narrow view of the statute. Kavanaugh seems less willing to grant executive agencies leeway in interpreting Congress' instructions than the Supreme Court has typically shown. Senators must explore how far this philosophy extends.

They should also press Kavanaughon when, if ever, the court should overturn precedents. Because Federalist Society officials pre-vetted potential nominees, senators should inquire about concepts the society espouses, such as originalism and textualism. What happens when the original meaning of a law is not clear, or when there was dispute about its meaning at the time it was written?

Most importantly, senators must extract an ironclad commitment that Kavanaugh will act as a check on the president. That's a role he has not seemed comfortable playing in cases involving enemy combatants, or in a law review article suggesting that the president should not be subject to civil or criminal court proceedings while in office.

There is always a danger that justices will be seen as loyal to the presidents and parties that installed them; that danger is particularly pronounced now, as Trump ignores traditional boundaries on presidential action and the Republican Party mostly enables his autocratic instincts.

Just as Democrats should not have ruled out Trump's pick before it was announced, Republicans should not duck their responsibility to bring a critical eye to the coming confirmation process.