President Donald Trump has made his choice for the next U.S. Supreme Court justice, nominating federal appellate Judge Brett Kavanaugh.
Our longstanding view is that the Senate should accord a president great deference on his Supreme Court nominees, whether conservative or liberal, as long as those individuals demonstrate solid knowledge of the law and a responsible approach to the court’s duties. The Senate confirmation hearing and debate need to examine these qualifications closely.
Presidential elections rightly involve strong debate over the direction of the Supreme Court. But once the winner of that national election is decided, that individual has gained considerable leeway to name the judicial nominees he or she prefers.
This doesn’t mean that Kavanaugh, who has served for 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, the nation’s most influential circuit court, should be given a pass. Senators have a duty to question him closely about his record and how he views the role of the court.
Kavanaugh’s appointment, if approved by the Senate, will have far-ranging ramifications for many years to come, since he will be succeeding Justice Anthony Kennedy, a longtime swing vote on the court. In general, Kavanaugh has taken a strong conservative approach to the law. Senate Majority Leader Mitch McConnell — who blocked lawmakers’ consideration of then-President Barack Obama’s nomination of Merrick Garland to the court in 2006 — plans to hold the Senate vote on Kavanaugh’s nomination before this fall’s Senate elections.
Given those circumstances, it’s no surprise that Kavanaugh’s nomination will meet intense political opposition.
Approving or rejecting judicial nominees on the basis of rigid ideological litmus tests ill serves the nation. But the confirmation process for Kavanaugh does provide a worthwhile occasion for Americans to consider and debate the proper role of the Supreme Court in the life of the nation. Kavanaugh — by all accounts, a serious-minded individual with a voluminous record of court rulings — needs to speak plainly and intelligently to such matters.
Consider a central issue that regularly comes before the court: deciding the boundaries of federal regulatory authority. The Supreme Court has a duty to say where the boundaries of that rule-making power lie, warning against government overreach.
In 2001 and 2006, for example, the court rightly told the Environmental Protection Agency, in separate water-policy cases, that the agency had exceeded its authority under the Clean Water Act.
It would be radical and irresponsible, however, for the Supreme Court to claim that federal power should be pared back to that in, say, the 1920s or earlier. The late Justice Antonin Scalia was a champion of originalism (looking to original intentions in constitutional language), yet he sometimes gave a judicial thumb’s up to certain regulatory actions and a thumb’s down to others, depending on the merits of the case.
The proper approach for the court, then, is one of balance. That is only one of the issues that Kavanaugh, well versed in the details of constitutional law, needs to speak on during his confirmation hearing.
The nation will be watching intently.