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Opinion: Confirming Judge Kavanaugh will do lasting damage

Source: 
Lawrence Journal-World
Author: 
Richard Levy
Date: 
Tuesday, October 2, 2018

An Open Letter to Senators Moran and Roberts:

As a professor of constitutional law, I normally strive to be nonpartisan and avoid taking positions on Supreme Court nominations. I will make an exception in this case. Each of you recently announced that you will vote to confirm Judge Brett Kavanaugh. Please reconsider. Confirming Judge Kavanaugh will do lasting damage to the Supreme Court’s legitimacy as a nonpartisan and impartial arbiter of the law. Without that legitimacy, the Court cannot uphold the rule of law.

While the pending FBI investigation into allegations against Judge Kavanaugh may provide additional information, it is unlikely to bring clarity. Judge Kavanaugh defended his honor fiercely and you may believe him to be an innocent victim, but it is also quite clear that millions of people believe that he engaged in criminal behavior as a young man and is now lying about it in order to secure confirmation. An FBI investigation is unlikely to dispel that belief, especially if the FBI is not permitted to fully investigate all the allegations against Judge Kavanaugh. If widespread and serious doubts about his honesty and integrity remain, confirming Judge Kavanaugh would be a tremendous disservice to the nation.

Independent of these concerns and even if Judge Kavanaugh is innocent, there is now a more fundamental problem with confirming him. In defending himself, Judge Kavanaugh’s statements and demeanor reflected a temperament that is wholly unsuitable for a justice on the United States Supreme Court. While we would expect anger from a wrongly accused man, Judge Kavanaugh made hyperbolic partisan attacks and expressed utter contempt for the Democratic Party. If he ascends to the Court, it is impossible to imagine that he can put these sentiments to one side and decide cases impartially. Every opinion he wrote and every vote he cast would be suspect. Millions of people would dismiss every decision in which he cast a crucial vote as illegitimate.

It is, of course, horribly unfair to Judge Kavanaugh if he is indeed innocent. But there are much larger issues at stake than one man’s elevation to the court or even the direction of the court for a generation. The issuance of politically charged decisions and escalating partisan warfare over nominations has already done enough damage to the Supreme Court’s legitimacy. Confirming Judge Kavanaugh would also confirm the perception that the Court is a nakedly partisan political institution–one that is incapable of providing equal justice under law. I fear the Court and the rule of law may never recover.

If you care about the Supreme Court as an institution and if you care about the rule of law in our country, I beg you not to vote to confirm Judge Kavanaugh.

Note: The views expressed in this letter are mine alone; I do not speak for the KU Law School or the University of Kansas.

— Richard E. Levy is J.B. Smith Distinguished Professor of Law at the University of Kansas School of Law.

Faculty name: 
Richard Levy