A Public Disservice

Published May 3, 2006

National Review Online

The Senate Judiciary Committee is scheduled to vote Thursday morning on President Bush’s nomination of Brett Kavanaugh to the D.C. Circuit. The eight Democrats on the Senate Judiciary Committee will vote en bloc against Kavanaugh’s nomination. With the support of all ten Republicans on the committee, Kavanaugh should be favorably reported to the Senate floor by a 10 to 8 party-line vote.

Democrats will then try to translate their own unprincipled and partisan opposition to Kavanaugh into the charge that Kavanaugh himself is somehow too partisan. But they have no evidence to support this charge — and a long tradition to defy. Unhinged by their own frenzied hostility to President Bush and former independent counsel Ken Starr, the Democrats, supposed champions of public service, will really be punishing Kavanaugh for his highly commendable record of public service.

Nominated to the D.C. Circuit nearly three years ago, Kavanaugh, now 41, has a remarkable breadth of experience that few judicial nominees could match. Among other things, he has been a Supreme Court clerk (to Justice Kennedy), has devoted more than ten years to federal-government service, has served in a senior position in the executive branch, has been a partner in a major national law firm, and has argued cases in the Supreme Court and court of appeals. In his various jobs, he has earned the admiration of people across the political spectrum who have worked with him (as the numerous quotations of endorsements in these White House talking points establish). That’s part of the reason that all 42 members of three different incarnations of the American Bar Association Committee on the Federal Judiciary have rated him “well qualified” or “qualified” for the D.C. Circuit seat.

This country has a long tradition of recognizing that judging is distinct from politics and of trusting that persons of integrity who have been successful in public life — even on behalf of partisan figures or causes — can don the judicial robes and serve justice. This tradition has been prominently reflected in several of the most recent Democratic appointees to the D.C. Circuit.

President Carter, for example, appointed Abner Mikva, Patricia Wald, and Ruth Bader Ginsburg to the D. C. Circuit. Mikva had been a very liberal Democrat in the Illinois legislature and in Congress for some 21 of the 23 years preceding his appointment. Among other things, he was a leading voice in support of gun control and had labeled the National Rifle Association the “street-crime lobby in Washington.” Wald was a political appointee in the Justice Department at the time of her nomination and, before then, had been an activist lawyer for left-wing advocacy groups for a decade. And Ginsburg was general counsel of the ACLU and counsel for the ACLU Women’s Rights Project.

More recently, one of President Clinton’s three appointees to the D.C. Circuit was Merrick Garland. Garland, 44 at the time of his appointment, was a high-level political appointee in the Clinton Justice Department. He had also been a law clerk to Justice Brennan.

With the exception of Garland, whose record is comparable to Kavanaugh’s, these Democratic appointees all had records that were overtly far more partisan than Kavanaugh’s. As a legislator, Mikva adopted an array of liberal positions that were unambiguously his own. And Wald and Ginsburg each chose to devote their legal abilities to work for highly partisan organizations.

Kavanaugh’s allegedly “partisan” employment, like Garland’s, has all been for the United States government. Senate Democrats intensely dislike the fact that Kavanaugh worked for Ken Starr’s independent-counsel investigation of the Clintons. But by all accounts (including Bob Woodward’s), Kavanaugh performed responsibly. Indeed, Democrats should applaud the fact that Kavanaugh urged that the Starr report focus solely on possible legal grounds for impeachment and later sought to prevent public release by the House of graphic details of President Clinton’s sexual misconduct.

Since 2001, Kavanaugh has also worked in the White House, first in the White House Counsel’s office and more recently as White House staff secretary. Democrats’ primary complaint appears to be that Kavanaugh has effectively implemented the president’s positions. During the floor debate on Justice Alito’s nomination to the Supreme Court, Senate Democrats argued repeatedly that Harriet Miers should have been the nominee. Ironically, Senate Democrats now contend that the very White House experience that helped qualify Miers in their eyes for the Supreme Court — service as staff secretary and in the White House Counsel’s office — somehow should count against Kavanaugh for the D.C. Circuit.

Senate Democrats are demonstrating by their conduct that they are too partisan even to treat nominees like Kavanaugh with basic decency and fairness. If they filibuster Kavanaugh’s nomination, the duty of Senate Republicans to reform the Senate’s cloture rules to prevent irresponsible filibusters of judicial nominees will be clear.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

Most Read

This field is for validation purposes and should be left unchanged.

Sign up to receive EPPC's biweekly e-newsletter of selected publications, news, and events.


Your support impacts the debate on critical issues of public policy.

Donate today