Tradition dating back to 2017 holds that a right wing Supreme Court nominee is entitled to a New York Times op-ed from a liberal lawyer about why, actually, the nominee is good, even if all of his actual ideas are dogshit. We got the latest edition last night when Donald Trump nominated human muppet Brett Kavanaugh to the Supreme Court.
Kavanaugh’s name had barely left Trump’s lips when the Times tweeted out a post by Yale law professor Akhil Reed Amar called “A Liberal’s Case for Brett Kavanaugh.” Alternatively, it could be called “A Liberal’s Case for His Right Wing Student,” because—as Amar just casually drops five paragraphs deep in the story—he taught Kavanaugh at Yale. No vested interest in seeing Kavanaugh succeed here. Not at all.
Central to Amar’s argument that the Democrats should confirm Kavanaugh is that the nominee is a legal scholar— as if Trump made his decision by combing through the last decade of Kavanaugh’s legal opinions rather than getting the CliffsNotes of the CliffsNotes that Kavanaugh has a very strongly-held belief that the president should have free reign to do insanely corrupt things with no consequences.
Here’s a sample from Amar’s endorsement of his old student:
Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)
He who the Consumer Financial Protection Bureau calls an enemy, the Avid Consumer of Legal Scholarship Protection Bureau calls a friend.
Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.
Ah, yes, that famous problem liberals have with Scalia. The fact that he didn’t read enough.
This would be a mistake. Judge Kavanaugh is, again, a superb nominee. So I propose that the Democrats offer the following compromise: Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.
Here are two better candidates than Kavanaugh: An egg wearing a hat and sunglasses and a Rico Brogna baseball card from 1998. The reason that both of these candidates are better than Kavanaugh is because they are not living things, and non-living things cannot cast a vote. If either the baseball card or the egg was the ninth Supreme Court justice, most major decisions would be deadlocked for the foreseeable future. That would be a vast improvement over what we’re about to get.
Amar wasn’t the only one hocking this line about scholarship. Here’s senior Brookings fellow Benjamin Wittes, who hasn’t even explained his position on Kavanaugh as a nominee, but is playing the same kind of dumb game:
I am not a lawyer and have enough student debt as it is, so let me be probably not the first to say: I do not care about Kavanaugh’s love of scholarly works, or how he decent he might be. I do not care about any of this shit. Donald Trump certainly does not care about it either. Nor do the United States senators who decided long before Kennedy made the decision to give his seat up that they were going to vote for whoever was going to stand at that podium next to Trump, so long as that person was sure to protect conservative laws and kill liberal legislation.
The only thing they care about is how Kavanaugh will vote. And as has been covered, Kavanaugh will, in all likelihood, vote like a reactionary. If Brett Kavanaugh votes to overturn Roe v. Wade, people will die. That is not decent. There is no amount of scholarship that will make that alright.
Along with what everything that it means for Roe, for trans rights, for voting rights, for undocumented people and Muslims, and any litany of issues the Supreme Court might face in the coming years, Trump’s nomination of Kavanaugh will have profound implications for future legislation as well. Antonin Scalia was supposedly an “originalist,” and in his very originalist reading of the Constitution, was somehow able to pull Citizens United and Shelby v. Holder out of his ass. Every left and center-left policy that could conceivably be enacted in the coming decades is on the chopping block. Think about Medicare for all, or modest reforms to the Affordable Care Act; abolishing ICE, or attempting to curb its power without killing the agency; jobs programs, or public-private partnerships. Any legislative effort to put unions back on a more level-playing field with the Chamber of Commerce, and any kind of government-mounted attempt to both avoid and prepare for the worst of climate destabilization.
All of this could, and probably would, be struck down on a Supreme Court where John Roberts is the moderate. So to believe that the broader left should just pass on this fight because Kavanaugh is well-read or nice is dumbass childish bullshit. Everything we have and everything we can imagine that is achievable within this crumbling system is at risk. The Democrats are probably going to lose this fight, but anything less than a full-throated attack on Trump’s nomination is tantamount to capitulation on what might very well turn out to be the most consequential decision Trump ever makes.