September 5, 2018 | Reading Time: 4 minutes

Is Brett Kavanaugh a Legitimate Nominee?

The question begins with Mitch McConnell and ends with Fred Guttenberg.

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Brett Kavanaugh is trying his level best to look like a plain-vanilla nominee for the United States Supreme Court. The appellate court judge borrowed from John Roberts’ playbook Monday, saying a justice should be like a umpire neutrally calling balls and strikes. That sounded reasonable when Roberts, the court’s chief justice, said it, thus skating through the Senate confirmation process. That was 2005, though.

2018 is different.

We now have a president, Donald Trump, who may or may not have won the presidency on his own; who associated during the 2016 election with men who have since pleaded guilty to federal crimes or have been convicted of federal crimes; a president who has been implicated as an unindicted co-conspirator. We have a president who is the subject of an investigation looking into links between his campaign, which we know was full of crooks, and saboteurs in league with Vladimir Putin; who may be picking a justice in a possible future case against him; who over the weekend said the rule of law is secondary to the interests of his political party:

“A judge must interpret the Constitution as written, informed by history and tradition,” Kavanaugh said Monday. “I do not decide cases based on personal policy preferences.”

All that sounds good.

Good, but empty.

Mitch McConnell, the Senate Majority Leader, ruined it for Kavanaugh. Probably ruined it for Associate Justice Neil Gorsuch, too. McConnell blocked Barack Obama’s nominee, an actual plain-vanilla nominee by the name of Merrick Garland, from getting a hearing. From that point onward, the toothpaste was out of the tube.

Balls and strikes don’t sound reasonable anymore.

They sound like politics.

The Democrats know the public knows this. The president’s job approval has sunk below 40 percent, according to three big polls over the last few days. Moreover, the electorate is weighing in on Kavanaugh in ways I have never seen before.

Just 38 percent said he should be confirmed, according to an ABC News survey. That’s an astounding figure given most people don’t have the foggiest idea about the law, the courts or legal affairs. What they do have an idea about, however, is fairness.

Is it fair for a president, who is an unindicted co-conspirator, to pick a justice? Is it fair for a president, who is an unindicted co-conspirator, to pick a justice in a future case against the president, who is an unindicted co-conspirator? (Is it fair, for that matters, for the Republicans to release decades’ worth of paperwork on Kavanaugh’s time in the White House one day before Senate hearings were set to begin?)

The Democrats, so far united in their messaging, are poking this soft spot. They are probably going to lose the fight. The GOP has the required 51 votes. But the Democrats are going to jam them against negative public opinion. They are trying to cement in people’s minds this question: Is Kavanaugh a legitimate nominee?

Making things worse for Kavanaugh is Kavanaugh.

Like I said, most people don’t have the foggiest idea about the law, the courts or legal affairs. But they understand character. Even as he offered platitudes—this morning he said that “no one is above the law” and that “everyone is equal in the eyes of the law”—Kavanaugh revealed his nature (see picture below) when he turned his back on a Florida man whose daughter was murdered during this year’s Parkland massacre.

Fred Guttenberg’s daughter, 14-year-old Jaime, was among those shot to pieces in February. He believes Kavanaugh will rule in favor of gun rights at the expense of public safety. Even so, he tried to shake Kavanaugh’s hand. Instead of doing the right thing, which would have been taking the man’s hand, Kavanaugh turned away.

That alone was damning. My senator, Dick Blumenthal, knows it.

It gets worse.

Guttenberg went on CNN to explain what happened. His account flatly contradicts the White House’s version of the facts (an incorrect version, as everyone can see the video). Guttenberg added that not only did Kavanaugh turn his back on him; Kavanaugh demanded that security forces remove Guttenberg from the hearing room.

We have yet to appreciate the magnitude of this moment. Again, most people don’t follow the nuances of court precedent, legal reasoning, and jurisprudence. The Republicans and Democrats are going to ask lots of questions about presidential power, guns, unions, property rights and abortion. Most of that won’t matter.

What matters is the growing view among voters that the president of the United States may be picking his own judge, a judge who says he doesn’t decide cases based on personal policy preferences, a judge who nonetheless forced from his sight a man whose daughter died a horrible death and whose very presence in the room might threaten his rise to power. That’s about as damning as one can imagine.

Is Kavanaugh a legitimate nominee? Time will tell, and the fact that time will tell tells you everything you need to know about the politics of the US Supreme Court.

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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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