WASHINGTON — Passions on the left against Brett Kavanaugh are running high. But the main lines of argument against his confirmation to the Supreme Court have pretty much crumbled.
Hasn't the nominee promised to protect President Trump from legal accountability? Rubbish. Kavanaugh has argued that Congress should pass a law that would defer civil and criminal cases against a president until after he leaves office, because no president could properly function under a barrage of prosecutions. But Kavanaugh has never asserted that the Constitution prevents such prosecutions. In fact, his proposal for congressional action seems to imply that the Constitution does not provide such protections.
Isn't his nomination "political payback" for services rendered to the Republican Party? Codswallop. In his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh has become one of the most respected and influential judges in the country. "It is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh," says the decidedly non-conservative Akhil Reed Amar of Yale Law School.
Isn't he an enemy of Roe v. Wade who wanted to force a migrant teenager in custody to bear a child? A distortion. While Kavanaugh opposed forcing a federal agency to make special provision for abortions, his dissent was made on narrow grounds that did not call Roe into question. Realistically, no judicial conservative is likely to be a fan of Roe, which is the pinnacle of judicial activism. But we have no idea what weight Kavanaugh would give to precedent and long social practice on this matter.
Kavanaugh is a mainstream conservative jurist with an ideal judicial temperament. If there is anything distinctive about his record, it is a strong opposition to the administrative state in favor of elected officials. He is particularly concerned about the rights of accused criminals. He writes eloquent, careful, nuanced opinions. And he also happens to be — according to my certain and personal knowledge — a particularly fine colleague and human being. He could easily have been nominated by a President Jeb Bush or John Kasich.
I have used the word "mainstream" advisedly. Kavanaugh is an advocate of what he calls "constitutional textualism." His first commitment is to interpret the Constitution "as written." But he admits that the language of that document can sometimes be broad and unclear. The First Amendment, for example, protects free speech without limit, though everyone admits it must be limited in certain cases (libel, inciting violence, irresponsible theater disruption). "The exceptions here," he writes, "are ultimately a product of common-law-like judging, with different justices emphasizing different factors: history and tradition, liberty, and judicial restraint and deference to the legislature being three critical factors." This is a reasonable, pragmatic textualism that is not likely to produce extreme or overreaching decisions.
The arguments with the most emotional power on the left have nothing to do with Kavanaugh himself. Some want payback for the poor treatment of President Obama's last (and blocked) nominee, Merrick Garland. That is hardly Kavanaugh's fault. Others on the left are angry because a reliable conservative is replacing a swing vote. Again, not Kavanaugh's doing. Ultimately, Kavanaugh's critics believe he is disqualified because he won't vote in the ways they prefer. To which there is one reply: Next time, win Pennsylvania.
Fresh out of serious arguments, congressional Democrats have turned to delaying tactics. One — the demand to review every document that Kavanaugh handled at the White House as President George W. Bush's staff secretary — is particularly silly. As head of speechwriting, I worked closely with Kavanaugh. The role of the staff secretary is not to propose policy but to maintain paper flow to the president. This is dramatically more important than it sounds. The staff secretary is in charge of the staffing process, in which speeches and documents are distributed to senior staff members for their review and input. Kavanaugh was utterly meticulous in making sure that the comments of others were fairly considered. But he provided no comments himself (except, on occasion, corrections to my embarrassing grammatical errors). His role was to be an honest broker — which he played with great care and integrity. Congressional review of the vast number of documents that he distributed and collected as staff secretary would reveal nothing — absolutely nothing — about Kavanaugh's own views. It would be a fishing expedition in the entire Pacific Ocean. And a massive waste of time.
The uncomfortable reality for Democrats? Kavanaugh is more than an obviously qualified judicial nominee. He is the best decision of the Trump presidency so far. He should be quickly confirmed.
Michael Gerson's email address is firstname.lastname@example.org.