I consider the vote the Senate is about to take on Brett Kavanaugh’s nomination to the Supreme Court to be among the most important my colleagues and I will ever face. Unlike most of our decisions, which can be amended, repealed, or otherwise corrected over time, this is a one-time vote on a lifetime appointment which will likely profoundly affect our country for the foreseeable future. There are no do-overs or second chances on this one; each of us, including the people of Maine, will have to live with the consequences of this vote for years to come.
For this reason, I have spent a great deal of time and energy on this decision; I have read many of his opinions, attended a substantial portion of his recent hearing (even though I am not a member of the Judiciary Committee), read every article on his background I can find, talked to my colleagues (in both parties), and listened to the views of thousands of Maine people, both in communications to my office and direct conversations over the past two months.
After this intensive process, I have determined that I cannot support this nomination; here’s why:
1. There is too much is at stake. In the near future, the Supreme Court will face cases involving reproductive and other privacy-related rights, health care (including the future of the Affordable Care Act), environmental protection, voting rights, campaign finance, and consumer protection, among others. And in connection with all these issues, Judge Kavanaugh’s record indicates that he subscribes to an overly rigid judicial philosophy (as demonstrated by his longtime membership in the Federalist Society) which would allow the states great leeway in narrowing the personal liberty protections afforded by a long line of Supreme Court cases, including Roe v. Wade. (He may not vote directly to repeal Roe – though I think his record indicates that he will – but he will almost certainly vote to whittle away its protections, leaving not much more than a hollow shell.) Additionally, according to this philosophy, he appears ready to narrow and restrict the powers of the national government to secure voting rights, control partisan gerrymandering, reform campaign finance, promote greater access to healthcare, or protect the environment. For example, he has ruled that the EPA cannot limit air pollution crossing state lines, a decision with a profoundly negative impact upon Maine given our geographic location at the end of the nation’s tailpipe.
2. Presidential power and his non-recusal. Judge Kavanaugh’s prior public statements indicate that he has a very broad view of presidential power and that he questions whether a sitting president can even be investigated, let alone indicted or compelled to testify in a criminal proceeding. These are difficult questions upon which reasonable people can differ, but given these statements (and his steadfast refusal to clarify his views on this point during his hearing before the Judiciary Committee), the circumstances surrounding his appointment, and the distinct possibility that such questions may come before the Court sooner rather than later, the necessity of recusal, in my view is, obvious and mandatory, and his failure to commit to do so is extremely troubling.
The Code of Conduct for United States Judges states that “a judge should avoid impropriety or the appearance of impropriety in all activities.” (Emphasis added). The reason for this is simple; the Code goes on to say that “A judge…should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It’s hard to imagine anything more likely to undermine public confidence in the integrity and impartiality of the judiciary than a newly-minted Justice Kavanaugh ruling in favor of the president who appointed him (quite possibly being the deciding vote) on questions involving that same president’s legal liability.
3. The documents (or lack thereof). Imagine you are interviewing a candidate for a key job in your company and he tells you that you can only see 10% of his prior work product—and that that 10% is going to be hand-picked by one of his old friends. (Oh, and did I mention that once you hire him, he can never be fired?) If this sounds ridiculous, that’s because it is; and yet this is exactly the position we are in with Brett Kavanaugh. Yes, we have his decisions in his current role as an appeals court judge, but his extensive written record in high level positions in the White House remains largely in the dark, for no good reason.
And it’s this last point that keeps nagging me; why are these documents being withheld? The only valid excuse would be national security, but there is no assertion that this is a factor in this case. Which leads me to the inescapable conclusion that his proponents may be hiding something; either they are afraid there is a bombshell in his record, or, quite possibly, they know it. And the haste with which this process is being conducted only heightens this suspicion.
4. His answers (or lack thereof) at the hearing. Voting on a Supreme Court nominee is an exercise in predicting the future; we are all trying to get some idea as to what kind of judge he or she will be – and since a large portion of Judge Kavanaugh’s prior work (other than his appellate court opinions) seems to be off-limits, his hearing was the next logical place to look when seeking to learn how he thinks and might approach the difficult questions the Court is sure to face during his tenure. Unfortunately, the hearing produced virtually nothing in this regard. Saying Roe v. Wade is a precedent, for example, (which he said repeatedly) is a statement of fact, but provides no insight whatsoever into whether Judge Kavanaugh thinks it was properly decided or should be repealed or modified. In one memorable exchange with Senator Chris Coons of Delaware, he even refused to confirm that his prior speeches and writing represented what he actually thinks. C’mon.
5. When in doubt, follow the (dark) money. A large part of my concern, as outlined above, is the difficulty in determining what Judge Kavanaugh really thinks. The withholding of most of his record, his evasiveness at his hearing, and his failure even to acknowledge his past statements, all leave us to guess what kind of judge he will make (although the outlines, as noted above, seem pretty clear). And spare me, please, the “umpire just calling balls and strikes” routine; deciding whether a state law severely restricting reproductive rights is “unduly burdensome”, for example – which he will almost surely have to do – is a value-laden judgement call, not some mechanical application of easily defined criteria.
But the deeply conservative dark money groups investing millions in those glossy TV ads we are seeing about what a nice guy he is know exactly what they are getting, and it’s not balls and strikes. The existence of this campaign probably tells us more about what kind of judge he will be than any opinion, speech, or Senate testimony.
As I began, there is no second chance on this, and given the stakes as well as what we do know of his record, I have no choice but to vote no.
