A Kavanaugh Confirmation Would Demean the Supreme Court’s Integrity

NRDC is devoted to the rule of law—and we’re working to stop President Trump, Senate Republican leadership, and Judge Kavanaugh from undermining the credibility of our judicial branch.

Brett Kavanaugh speaks at the Senate Judiciary Committee hearing on his nomination to be an associate justice of the Supreme Court of the United States.

Michael Reynolds/Picture-Alliance via Associated Press

During the past 19 months, many Americans, myself included, have seen President Trump debase the presidency. He has attacked and belittled our institutions of law, including the U.S. Department of Justice and the FBI. Republican leaders in Congress have acquiesced far too often. Now, the Senate’s rush to ram through Judge Brett Kavanaugh’s confirmation to the Supreme Court threatens to undermine the credibility of our third branch of government. NRDC is working hard to prevent that from happening.

We are an organization devoted to the rule of law. We have advocated effectively for the enactment of laws and rules that protect and enhance the environment and public health. And we seek to enforce those laws and rules in court. Without effective enforcement, laws mean little to the people and planet they are meant to protect.

The actions of President Trump and his appointees, enabled by the Republican majority in Congress, underscore the reason we litigate.

The president lies incessantly, and he and his agency heads deny or ignore scientific fact in pursuit of their anti-regulatory agenda. Republican lawmakers cheer them on.

When I see, on one side of the front page of the newspaper, photos capturing the misery and damage caused by raging wildfires or vicious hurricanes, and, on the other, reports on the administration’s easing of restrictions on the carbon or methane emissions that exacerbate climate change, I wonder why our elected representatives are not making the obvious connection.

The federal courts are a different universe. Evidence matters. Reason prevails. Power and money do not determine outcomes.

Which brings to mind one deeply disturbing element of Judge Kavanaugh’s testimony last week before the Senate Judiciary Committee. The substance of his defense, and the manner in which he delivered it, stripped bare the raw political nature of the nomination and the Senate’s deliberation, blurred the distinction between the judiciary and the elected branches of government, and undermined public confidence in the courts. In unmeasured tones, he said: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.” This is not the language of a judge. 

There is a political element to the selection of judges: A president nominates. The Senate confirms. But judges are supposed to be—and need to be—above the partisan political fray. And the public needs to perceive that judges are independent of such politics.

Otherwise the judiciary is, or appears to be, simply an extension of the executive or legislature, another way to assert the power of elected leaders. This is precisely how President Trump views the federal courts—as an instrument of his own authority.

This reveals a flagrant disregard for the role of the judiciary in our constitutional democracy. Judges are human. They have political inclinations. They have emotions, including anger. But if they’re worthy of wearing the robe, they set aside personal inclinations and emotions in favor of facts and law, and they generate the perception that they are doing so. Judge Kavanaugh himself has spoken unequivocally on this point. But in his performance last week, the judge defied rather than demonstrated these essential values.

The critical role of the federal courts has been evident since the Trump administration assumed power. The number of cases in which NRDC has engaged to challenge a Trump administration action is approaching 70; that’s one every nine days since the president’s inauguration.

Of those cases, 25 have been finally resolved, 21 of them in our favor. Why? Because federal courts are enforcing the law, ruling time and time again that the U.S. Environmental Protection Agency and other agencies are pursuing their politicized anti-regulatory campaign without complying with fundamental requirements of law.

During the Trump regime, the courts have been a bulwark against the lawless, autocratic dismantling of decades’ worth of environmental and public health protections. To play this essential role, courts must maintain both the reality and the appearance of objectivity, of not having a political (or any other) ax to grind. This is fundamental to their authority and what differentiates the judiciary from its coequal branches of government.

If Judge Kavanaugh believes he’s being wrongly accused of acts of sexual violence, at immense cost to his family, reputation, and job prospects, of course he’s angry. But the nature of his rage, and the way he expressed it, is shocking for a sitting judge, much less one seeking a seat on the Supreme Court. He blamed a left-wing conspiracy, comprised of unnamed individuals and groups, who, disturbed by Trump’s election or the Starr investigation of the Clintons, are trying to do him in. He did not support that claim with evidence.

Dr. Blasey Ford appears to have come forward on her own, for her own understandable reasons, before President Trump even nominated Judge Kavanaugh. And presumably some of the unnamed “left-wing” groups the judge accused are litigants who will appear before him.

NRDC rarely weighs in on whether federal judges should be confirmed by the Senate. We decided to oppose Judge Kavanaugh’s confirmation after exhaustive research on his jurisprudence. His views, for example, on citizen standing are antithetical to ours and, if they become the law of the land, would restrict access to the courts for NRDC, its members, and our colleagues in the nonprofit world. Our opposition preceded the revelations concerning his personal conduct and his testimony last week.

After Judge Kavanaugh’s testimony, President Trump said the judge had “shown America exactly why I nominated him.” It was a rare moment of honesty for the president. The judge’s hyper-partisan rant was indistinguishable from what Trump himself might say at a political rally; no wonder it pleased him. The reason President Trump admired the performance is the reason it shocked me.

Still, as if events don’t matter, the Republican-dominated Senate appears poised to confirm Judge Kavanaugh. To do so would demean the integrity of the federal courts.

About the Authors

Mitchell Bernard

Chief Counsel / Interim President

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