Kavanaugh’s partisanship alone disqualifies him

[BloombergOpinion]( [Early Returns]( [Jonathan Bernstein]( Conservative columnist Philip Klein [argues that Democrats are “hypocrites”]( for saying that Brett Kavanaugh is too partisan for the Supreme Court. He has a couple of fair points — but overall, I don’t think his argument is sustainable. First, the good points. Klein claims that it’s Democratic nominees, not Republican ones, who have moved in ideological lockstep over the years. What’s true here is that from Richard Nixon through George H.W. Bush, Republican presidents tended to nominate a mix of solid movement conservatives such as William Rehnquist and Antonin Scalia with, well, others. Some of those “others” were moderate conservatives, such as Sandra Day O’Connor; some, such as David Souter, were outright liberals. Over time, however, conservative interest groups have come to dominate the process, and the last several choices have been solid movement conservatives, at least if we don’t count the ill-fated nomination of Harriet Miers. (Justice Anthony Kennedy is to some extent a different story; in that case, Ronald Reagan wanted a movement conservative, but the Senate was too liberal to confirm anyone like that, and so Kennedy was chosen as a compromise candidate.) The pattern on the Democratic side is different. There hasn’t been anyone like David Souter anytime recently, no Democratic selection who was indistinguishable from conservative Republicans. But it’s not true that there’s ideological lockstep. Instead, what’s happened is that Democrats have mostly chosen liberals who are closer to the mainstream than Thurgood Marshall and William Brennan (a Republican selection!) once were. They vote together not because they are extremists, but because they’re fairly moderate — and because the cases the court hears tend to be those that ambitious conservatives want to hear. That, and not ideological uniformity among Democrats, explains for example why the Democrats were united in the Obamacare cases. I think Klein makes a fair case that Ruth Bader Ginsburg’s advocacy against Donald Trump in 2016 was in fact a case of unseemly partisanship on the Democratic side. And it’s certainly true that both sides have selected justices with partisan backgrounds, whether it’s Elena Kagan or John Roberts. However, Brett Kavanaugh is still different. He was different before allegations of sexual misconduct were raised, and he’s even more different now. The difference is between ideology and partisanship. Of course all judges have political beliefs, even if they pretend they don’t during their confirmation hearings. They are, as some say, politicians in robes. But they’re not just politicians in robes. There are important norms involved. Supreme Court justices and lower-court judges don’t say they are advancing their party’s interests. They don’t write opinions that admit to doing so; in fact, whatever their real motives, they try extremely hard to find neutral principles that support their positions legally, and they express themselves using those principles (see Jennifer Victor on how [the court approached Bush v. Gore](). Whatever Kavanaugh does if and when he is confirmed and sworn in, he’ll be entering the job without the ability to appear to be anything more than a politician in robes. In part, that’s because of his background as a partisan operative within the Ken Starr investigation and elsewhere. That’s significantly different than the jobs that Kagan and Roberts held. But in large part it’s about how he has conducted himself as a nominee. He chose to appear on Fox News to defend himself. And while I think it’s unfair to hold his anger during his combative second appearance against him, his [raw partisanship and overall conduct]( was strikingly inappropriate for a judge, let alone for a future justice. I’m not really one for talking about “legitimacy.” Despite good pieces such as [this one]( from Michael Nelson, I don’t really understand how it works. So I don’t really know how to evaluate my Bloomberg Opinion colleague Cass Sunstein’s view that Kavanaugh’s confirmation would not affect the court’s legitimacy, or Victor’s view that it would. And while Julia Azari makes the [sensible point]( that “our history suggests that sometimes a situation can seem stable and legitimate until it doesn’t,” I’m not really sure what to do with that, either. I guess I like the way that Boris Heersink at A House Divided [frames the question](. For him, legitimacy doesn’t seem to be an abstract concept; it’s the practical question of how much influence the Supreme Court has within the overall political system. The danger to the court isn’t that ordinary citizens will stop believing in it; it’s that, to the extent that the court is merely seen by all the players in the system as nothing more than an extension of ordinary party squabbling, the other players — the president, Congress, the executive branch, state and local governments, and organized groups — will simply stop listening to it. Pretending not to be partisan may be nothing more than a fig leaf. But it may turn out to be an important one. And it’s one that Kavanaugh has chosen not to maintain. That’s highly unusual, and regardless of anything else, it’s a good reason to keep him off the court. 1. James Goldgeier and Elizabeth N. Saunders on the “[unconstrained presidency](.” 2. Stacie E. Goddard at the Monkey Cage on [U.S. tensions with China](. 3. Calvin TerBeek at A House Divided on the [history of movement conservatism.]( 4. Adam Serwer on [Trump and cruelty](. 5. My Bloomberg Opinion colleague Timothy L. O'Brien on [myth-making in the Trump family.]( 6. And the latest on the [2020 Democrats]( from the crew at FiveThirtyEight. I don’t want to be too critical because they’re in part just having fun with it, but I continue to think they’re systematically underrating candidates with traditional experience and overrating everyone else. That said, they’re getting a lot closer to where I think the contest is. Since the last time I commented on their selections, in May, I count 10 current or recent senators or governors who have moved up in their rankings. Still, no one took Steve Bullock or Deval Patrick this time, and there are still 10 spots for people whose background would be somewhat (Mitch Landrieu, Beto O’Rourke) or extremely (Michael Avenatti, Dwayne Johnson) unusual for a Democratic presidential nominee. Of course, Donald Trump won a presidential nomination. But so far, at least, I see no sign at all that Democrats are interested in going anywhere near that road. Get Early Returns every morning in your inbox. Click [here]( to subscribe. Also subscribe to [Bloomberg All Access]( and get much, much more. You'll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. Bloomberg L.P. ● 731 Lexington Avenue, New York, NY 10022 [Web]( ● [Facebook]( ● [Twitter]( [Feedback]( ● [Unsubscribe](