- Max Stearns
Will Trump Finally Get Reagan’s First Choice?
Just over 30 years ago, Ronald Reagan made a bold move. He nominated among the most qualified jurists to serve on the Supreme Court. That wasn’t remarkable. What was remarkable was that Robert Bork, the nominee, a former Yale Law School Professor and sitting judge on the United States Circuit Court for the DC Circuit (the most prestigious of the federal circuit courts, one level just below the Supreme Court itself), had a detailed scholarly record placing him sharply to the right of the centrist conservative, Justice Lewis Powell, who he was chosen to replace. Had Bork been confirmed, the result would have been to turn the Supreme Court sharply to the right, changing any number of doctrines that the Court had embraced, including abortion rights (Roe v. Wade was decided in 1973); affirmative action (Board of Regents of the University of California at Davis v. Bakke was decided in 1978), and first amendment speech protections beyond core political speech.
Immediately upon Bork's announced nomination, Senator Ted Kennedy waged an ultimately successful campaign against what he deemed "Bork’s America," listing a host of hard earned rights that he claimed would be eliminated were the nomination to succeed.
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy . . . . President Reagan . . . should not be able to . . . impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
Ultimately, the Bork nomination failed, although, by some accounts, that had less to do with his record of judicial conservatism, which Kennedy certainly exaggerated for dramatic effect, or his controversial Indiana Law Journal article articulating his originalist philosophy, than a single incident at this confirmation hearing. Somewhat ironically, Bork’s downfall closely resembled that of Michael Dukakis, the Democratic nominee who ran unsucessfully against Reagan’s Vice President and presidential successor, George H.W. Bush. Dukakis was asked in a presidential debate how he would feel about the death penalty if his wife were raped and murdered. He gave a detailed policy answer involving the role of the state in criminal deterrence, ignoring the obvious point of the question: Did Dukakis have the capacity to publicly emote? Similarly, Bork was asked why he wanted to serve on the Supreme Court. He responded that it would be an “intellectual feast.” The right answer, of course, is that doing so would be a lifelong honor, an opportunity to serve the nation in the highest capacity for a man who loves the Constitution and the law, and most of all, a chance to serve the ends of justice and equality on which our system of governance rests, as is literally etched in stone above the Supreme Court entrance--"Equal Justice Under Law". Bork’s response contributed, instead, to the ongoing narrative that he was a non-empathetic ideologue, even though his judicial philosophy wasn’t far removed from those of Justices Antonin Scalia or Clarence Thomas, or even Chief Justice William Rehnquist, who had, like the present Chief Justice, issued the occasional disappointing ruling from the perspective of the hard right.
To this observer, there was really only one memorable moment in last night’s Brett Kavanaugh roll-out. We have come to expect the perfect family photo op. Yes, the man has a beautiful family, complete with a brilliant and attractive wife, who has her own remarkable resume, and two charming young daughters, Margaret and Liza. More notable was Brett Kavanaugh’s joke that whereas his oldest daughter, Margaret, loved to read, his youngest daughter, Liza, loved to talk, all followed by a big smile and a low five. Make no mistake, that was as calculated as it was brilliant. This is not a man who will commend the intellectual feast. The charm offensive is full on, and the Democrats are wasting no time drawing battle lines. As with Chief Justice Roberts, Kavanaugh will reveal himself as charming, articulate, and good humored. And yes, he's also extremely conservative. The Democrats understand this, and so they will be focusing on the jurist's substantive views and what those views mean for the nation in any number of areas, including, perhaps especially, on executive powers, abortion, and gun rights.
On executive powers, a position on which Kavanaugh has changed his mind, first taking a hard line view while Clinton was President, and later softening it while serving in the Bush II White House, where he met his wife, taking her on the first date the night before September 11 2001, now claiming the President shouldn't be distracted. Kavanaugh has argued that Congress should enact protections against civil and criminal litigation during the time a president serves in office. To be clear, this is not a crazy position. I'm not saying it's necessarily right, and it's not entirely obvious that Congress has the power to insulate the President from ordinary judicial processes. We know that as far as civil proceedings arising from conduct before the presidency itself, there's no executive immunity. Otherwise, this is a largely unchartered territory as far as caselaw goes. We do not know, for example, if the president is immune from criminal prosecution as a constitutional matter. If he isn't, we also don't know whether Congress has the power to change that by statute. To be sure, Kavanaugh's position is that Congress should enact a law, not that the president already has constitutional protection. In another administration, none of this would matter. Trump’s is no ordinary presidency, however, and related issues might emerge on the Court on which Kavanaugh would serve.
We don’t know Kavanaugh’s precise views on abortion or same sex marriage, although we do know he holds strong views on the Second Amendment. We also know that he holds a strong conservative record, including, perhaps especially, his many years of public service, including under Independent Prosecutor Ken Starr, well before serving as a Court of Appeals judge. And more than anything, we know that from the confirmation hearings we will learn pretty much nothing new of importance. In response to questions on such topics, he will give the now standard, intensely frustrating, response that such past nominees as John Roberts and Sonia Sotomayor gave (yes, this one’s a non-partisan issue): the job of the judge is to call balls and strikes, not to make the law. That’s not true, of course, and everyone knows it, especially those who have spent a career in the law. Even so, pretending it is true is now a prerequisite to getting confirmed. We will hear platitudes about stare decisis, and those platitudes might suffice to give Senators Susan Collins and Lisa Murkowski cover, the requisite votes to confirm, assuming no Republican defectors, and it might even suffice to pull in some Democratic Senators residing in red states. The Democrats unfortunately made this easier by badly playing the Gorsuch Game, following the Merrick Garland debacle. (And no, Senator Collins, just because Justice Neil Gorsuch wrote a book on stare decisis doesn’t mean he would vote to sustain Roe v. Wade.)
After Bork’s nomination went down, Reagan nominated Douglas Ginsburg, another highly respected judge on the DC Circuit and former Harvard Law Professor. Ginsburg’s nomination failed following a disclosure that, among other concerns, he had smoked marijuana as an assistant professor. Anthony Kennedy, a respected Ninth Circuit judge, for all the accolades that Trump opened with and the enthusiastic applause, was Reagan’s third choice, a safe bet. Everyone in the room last night knew that, and they also knew that had Reagan been president today, the 54 year old Brett Kavanaugh might just have been his first choice, creating the Supreme Court Reagan actually hoped for.
I suspect that Kavanaugh will ultimately be confirmed. And although his views considerably different from my own, it's also clear to this observer that under ordinary circumstances, he probably should be. He’s qualified. He’s smart. He’s telegenic, and although that seems insulting to bother mentioning, there we are. And most importantly, he’s savvy enough not to come off as did Bork or Dukakis. If he does, his daughter will diss him.
I welcome your comments.