Brett Kavanaugh Fails the Ben Sasse Test (and so Does Ben Sasse)

In his opening remarks at the beginning of the review process for Brett Kavanaugh's nomination before the Senate Judiciary Committee, Senator Ben Sasse (R Nebraska) gave a lengthy speech about the nature of the Senate's role in judicial appointments, and the ways in which the system had been corrupted. He lamented that though the Congress "is supposed to be the center of our politics," because it had ceded much of its authority to the Executive (short-circuiting the potential for real political debate), "the Supreme Court is increasingly a substitute political battleground." According to Sasse, this state of affairs "is not healthy, but it is what happens and it’s something our founders wouldn’t be able to make any sense of."
       Sasse's proposed solution to this problem was the restoration of integrity to the judicial nominating process:

    So, the question before us today is not what did Brett Kavanaugh think 11 years ago on some policy matter, the question before us is whether or not he has the temperament and the character to take his policy views and his political preferences and put them in a box marked irrelevant and set it aside every morning when he puts on the black robe.
    The question is, does he have the character and temperament to do that. If you don’t think he does, vote no. But, if you think he does, stop the charades. Because at the end of the day I think all of us know that Brett Kavanaugh understands his job isn’t to re-write laws as he wishes they were. He understands that he’s not being interviewed to be a super legislator. H e understands that his job isn’t to seek popularity. His job is to be fair and dispassionate.

         Sasse's remarks went viral in social media. They have been widely admired in conservative circles for their erudition, logical clarity, and rhetorical power. Few could deny that his analysis of the politicization of the Court is sound, and his proposed remedies are at least plausible. Unfortunately for Brett Kavanaugh, if we take Senator Sasse's standards as a guide, the Judge's performance before the Senate Judiciary Committee during testimony on Thursday (September 27) disqualified him from service on the Supreme Court. 
         To be clear, in making this assertion, I am not weighing in on the guilt or innocence of Judge Kavanaugh with respect to the allegations made by Dr. Christine Blasey Ford. Though I find her a much more credible witness than him (given his obvious falsehoods in Senate testimony), the facts of the allegations remain disputable. But in the course of his testimony on Thursday, Judge Kavanaugh behaved and expressed himself in a way that precludes effective service as a Supreme Court Justice, declaring:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

         No judicial nominee in the history of the Supreme Court has ever made remarks that were so blatantly partisan. The bitter perspective expressed here was the antithesis of "dispassionate," the ill logic that underpins these remarks is the opposite of "fair." Brett Kavanaugh has ruined his potential to serve those ends by defining his public persona in such overtly partisan form. If Brett Kavanaugh is confirmed to the Supreme Court, he will join it as someone who has openly declared that he has an acrimonious grievance against one political party and is beholden to its opponents for their support. 
         One might object that, if Kavanaugh is in fact innocent of the allegations brought against him, his angry grievance is organic and flows spontaneously from the assault on his person and his family. To ask him to ignore the attack on his character, so this line of reasoning goes, would be to insist that he maintain a ridiculous fiction. Why should he be expected to pretend that a political hit is not a political hit? There are two problems with this argument.
        The first stems from the fact of what is at stake in Kavanaugh's confirmation. He is on the brink of being confirmed to a lifetime appointment to one of the most powerful positions in our government, asking him to retain a demeanor of partisan neutrality, even in the midst and as the target of a very acrimonious political fight, is not too much to ask.  The nation is divided on a host of issues, including that of Kavanaugh's fitness to serve. Demonizing those who oppose his nomination (however much just cause he might have to privately resent the actions and suspect the motives of some, and however vitriolic some might have been in their attacks on him) undermines his credibility as a neutral arbiter with respect to all of the other questions over which Americans are at odds.  
       But even if one reject the idea that partisanship itself disqualifies Kavanaugh, the  blatantly biased nature of his remarks fatally undermines his credibility as an honest "referee." In this regard, the revealing flaw in Kavanaugh's indictment of his opponents and of Ben Sasse's critique of the judicial review process more generally are one and the same. In listing the motives for the Democrats to indulge in a "political hit," Judge Kavenaugh omitted the most proximal and obvious: the Republican Senate's refusal to grant a hearing to Judge Merrick Garland after he was nominated by President Obama in 2016. That, in combination with the Senate's elimination of the judicial filibuster in 2017, stripped the Democratic caucus of virtually all leverage in the process of judicial selection, thus super-heating the climate of partisan rancor surrounding Kavanaugh's confirmation hearings. 
        If we grant that Kavanaugh should be allowed to acknowledge the partisan atmosphere in which he is operating, then it must also be right to insist that he be "fair and dispassionate" in assessing its causes. Assigning sole blame to the Democrats in this regard is ridiculous. Why would Kavanaugh fail to acknowledge that Republicans share at least some responsibility for the acrimonious nature of his confirmation hearings, except out of concern for his own reputation and ambition or out of deference to the sensitivities of his Republican patrons in the Senate and White House? Either way, his partiality in this regard fatally undermines any notion of his capacity for fairness in the eyes of at least half the electorate.
         In the final analysis, both Senator Sasse and Judge Kavanaugh were being deeply disingenuous (and/or hypocritical), the former in laying down his test for a judicial nominee and the latter in making the remarks by which he failed that test. If, as Ben Sasse claims, the Senate is solely tasked with asking whether a candidate can be "fair and dispassionate" in judging the law, how could Sasse justify the GOP's treatment of Merrick Garland? Can anyone doubt that Garland, a jurist who had risen to the highest levels of the federal judiciary in 20 years of service (earning the praise of numerous GOP lawmakers along the way), demonstrated enough capacity for "fair and dispassionate" jurisprudence to at least merit a hearing before the Senate? 
         The GOP broke all precedent and refused to give Merrick Garland a hearing for the same reason that some Democratic senators leveled vitriol at Brett Kavanaugh: out of a partisan impulse to influence the balance of the Court. For either Ben Sasse or Brett Kavanaugh to pretend that the Democrats are villains while the GOP are a study in virtue in that regard is ridiculous.  Acrimonious judicial nominations did not begin with Robert Bork. Richard Nixon had two SCOTUS nominations fail for many of the same reasons that undermined the nomination of Judge Bork, and the ugliness of Democratic rhetoric deployed by senators like Ted Kennedy in the Bork case had ample precedent in the antics of Republicans like Strom Thurmond with respect to more liberal justices. Political considerations have always inflected Senate deliberations surrounding judicial nominees, that fact did not start being true during the Reagan era. 
        While politics has always played into the process of judicial selection, any dispassionate observer can see that the politics surrounding court appointments have become progressively more partisan and acrimonious in recent decades. This has happened for a number of reasons, the most obvious of which is the polarization surrounding the abortion issue and Roe v. Wade. No one, however, can reasonably argue that a single party is to blame for this incremental slide, either with regard to the process as a whole or in any individual case that has contributed to it. 
          Moreover, the system itself accounts for the political nature of the judicial appointments process in the constitutional safeguards surrounding it, which are themselves political.  Ben Sasse himself alluded to this fact when he noted that Congress, in the exercise of its duty, ideally "stands before the people and suffers the consequences and gets to back to our own Mount Vernon, if that’s what the electors decide." The constitution gives the Senate powers of "advice and consent" precisely because its members will be subject to the sanction of the voters in the wake of reviewing judicial appointments. Even if we grant Sasse's assertion that the Senate is solely charged with asking whether a duly nominated judge has the capacity to be "fair and impartial," it is ridiculous to assert that refusing to ask the question at all gives voters the same opportunity to review their representative's performance as the occasion of a Senate hearing. The GOP caucus did not refuse to grant Merrick Garland a hearing because he was clearly unqualified, but because a hearing would have shown him to be qualified, and the political cost of failing to confirm him in the wake of a hearing would have been too high. 
           Ben Sasse and Brett Kavanaugh have accused many Democrats of deploying unseemly and deceptive rhetoric in the review of the present Supreme Court nomination, and they are no doubt right. However credible Dr. Ford's allegations are, some of the most extreme claims made by Democrats regarding Judge Kavanaugh violate reason (though whether or not any of them amount to an orchestrated "political hit" is dubious). But the mendacity of the Democrats is at least done openly, is accountable for individually, and is thus fully subject to the sanction of the voters. It is thus no more cynical, blameworthy, or corrosive of the integrity of the nominating process than the craven collective silence of the GOP in the face of Merrick Garland's nomination. For Ben Sasse to suggest otherwise is damaging to his public credibility. For Brett Kavanaugh to do so is fatal to his fitness for service on the Supreme Court, as it undermines any notion that he could "take his policy views and his political preferences and put them in a box marked irrelevant and set it aside every morning when he puts on the black robe."
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