When George H. W. Bush nominated David Souter to become a Supreme Court justice, the New Hampshire judge had been on the federal bench for a total of three months. Souter was confirmed by a vote of 90-9 with the support of 46 Democrats.
When Donald Trump nominated Judge Brett Kavanaugh in July, he had been on the D.C. Federal Court of Appeals approaching 13 years. And yet Democrats are demanding that there be no vote at all until they can access millions of documents from the Bush White House during Kavanaugh’s time as White House staff secretary.
David Souter had virtually no record as a federal judge for senators to evaluate (he’d spent most of his career overseeing state courts in New Hampshire). Kavanaugh, on the other hand, has written more dissents alone than the total number of cases Souter handled in his entire federal career. And yet in Kavanaugh’s case, Democrats insist they don’t know enough about him to make an informed decision.
“It’s ridiculous,” says Hans von Spakovsky, senior legal fellow at the Meese Center for Legal and Judicial Studies at the Heritage Foundation. “Democrats know more about Judge Kavanaugh and his judicial approach than the vast majority of judges they’ve sent to the Supreme Court.”
As evidence, Spakovsky notes that, prior to Kavanaugh, 26 D.C. Circuit Court of Appeals judges were elevated to the Supreme Court. Kavanaugh has served on that court longer than 70 percent of them. “He’s written more than 300 opinions, he’s had 11 of his dissents later adopted by the Supreme Court. He literally laid out his judicial philosophy in a speech here at the Heritage Foundation last fall. There is no ‘secret’ Brett Kavanaugh,” Spakovsky says.
But does that mean that the Democrats only motive is partisanship? Is it really out of line for them to ask to see a nominee’s work product from his pre-judicial days?
No, says Adam J. White, Research Fellow at the Hoover Institute and professor at George Mason University’s Antonin Scalia Law School.
“It’s not uncommon for the opposition party to request, or even demand, records from the nominee’s work in the executive branch. Republicans wanted to see files from Elena Kagan’s time in the Obama administration and Democrats sought documents from John Roberts’ Reagan White House days.”
But, White says, not all requests are equal. “The difference is that Kavanaugh was the White House staff secretary, which means nearly all the paperwork that crossed his desk involved his minimal input. Democrats and Republicans should reach a deal to disclose the White House files that contain more than just de minimis input by Kavanaugh.”
The fact that Democrats don’t appear to want such a deal indicates their efforts are “largely partisan,” concedes White.
Still, Spakovsky argues, all the additional documents are irrelevant—other than as a source for a fishing expedition to find something controversial that crossed Kavanaugh’s desk and derail his nomination. They’re irrelevant because Kavanaugh’s judicial philosophy is both clear and clearly established in his record without them. And, Spakovsky adds, conservatives should be happy about that.
“Think about Justice Kennedy,” Spakovsky says. “Some conservatives like to bash him, but the fact is he was very good [from a conservative standpoint] on many issues: The First Amendment, the Second Amendment—he even voted against ObamaCare, remember?”
“But when it came to social issues like abortion and same-sex marriage, Kennedy had a form of judicial schizophrenia. It wasn’t just that he voted for liberal outcomes. He actually changed the way he approached the law and the cases. For many on the Right, the complaint about Kennedy wasn’t that he stopped being conservative. It’s that he wasn’t being consistent.”
Spakovsky predicts Kavanaugh won’t have the same problem. “Even when he has outcomes I don’t like, he follows a consistent legal approach,” Spakovsky says.
And this may be the heart of the Democrats’ opposition. During the Supreme Court term that just ended, there were 19 cases decided by 5-4 votes. Justice Kennedy was one of the five in every single case.
Replacing him with a justice who more closely hews to a conservative view of jurisprudence, one that doesn’t change even when the issue before the court is politically polarized or culturally divisive, may mean more of those 5-4 votes may deny Democrats the political outcomes they want.
Adam White suggests observers refrain from jumping to conclusions. “As influential as Kavanaugh has been on the D.C. Court of Appeals, he was still hemmed in by the decisions of the Supreme Court. His decision-making was limited by the boundaries they set,” White says. “That’s why I think it’s reasonable to review his pre-judicial work to get a fuller sense of his thinking and philosophy.”
However, as Spakovsky points out, Kavanaugh’s appointment to the Court of Appeals was held up for three years by Democratic opposition. There were two full hearings on his appointment, in 2004 and in 2006. His opponents had repeated opportunities to demand these same documents from his White House days and deny him a vote if they truly believed the records were vital.
“They had three years to look into Kavanaugh–immediately after he left the White House—and they didn’t bother with these staff secretary documents,” Spakovsky says. “The problem isn’t that they don’t know his record. They do. It’s the outstanding record of a brilliant judge in the mainstream of American judicial philosophy. There is no legitimate reason to vote against him,” Spakovsky says.
“That’s why they’re still looking.”