The "liberal case" for Kavanaugh is nonsensical

So Yale Law Professor Akhil Reed Amar wrote a lovely Op-Ed endorsing Kavanaugh from the liberal perspective. Here’s one example. Lisa Blatt, a “liberal feminist”, wrote a similar piece for Politico. A quite frankly embarrassing fluff piece in the Washington Post about his character. In short, there are some liberals playing with the idea that Bret Kavanaugh is a fine pick for supreme court.

This is really, really stupid.

Let’s dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it’s especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on. Textualism doesn’t help us much either - the constitution contains nothing on segregation, nothing on unions, and nothing on workplace safety. And in fact, Kavanaugh has had several dissents where his take seemed clearly not based on what the law actually said - so we’re not even dealing with consistent textualism:

For starters, Kavanaugh just got the law wrong. Even in his ESPN extreme courtroom, the law would require a skydiving outfit to provide backup parachutes, for example.

And once you dispense with that fantasy, it starts to become clear what kind of person Kavanaugh is. There are three primary things that spring to mind when examining Kavanaugh’s legal record.

Firstly, that he almost never goes to bat for the weak or against the powerful. He is very consistently on the side of the bigger fish, against unions, against protecting the rights of workers, et cetera.

Secondly, that he never shows any awareness of how power disparities can impact things like working relationships (consider how he describes arbitration in the Epic Systems decision).

Thirdly, that he does not seem to care about the harm caused by his decisions, or really harm at all, consistently downplaying the harm done in cases where his decision would have led to people getting off the hook for torture, unsafe work environments which lead to people’s death, and more.

CurrentAffairs has a tour de force article on this which I would be remiss to not post here. To quote from it:

Kavanaugh, then, is both a bad judge and a bad person. He is a bad judge because, in Saleh v. Titan, he joined an opinion that, even though Congress had never given contractors immunity from being held accountable for torturing people, found a way to shield these contractors, and did so while misleadingly presenting the alleged facts of Abu Ghraib and casting doubt on the claims before they had been litigated. He is a bad judge because he suggested the very explicitly-defined term “employee” in the National Labor Relations Act doesn’t apply to undocumented people, and he’s a bad judge because he can’t tell when a company is obviously trying to pull the wool over the court’s eyes for the purpose of subverting its labor agreements.

More importantly, though, he’s a bad person. He is a bad person because, well, he needlessly kept a group of Iraqis from litigating important claims against companies that had allegedly committed horrific atrocities. He’s a bad person because, in multiple cases, he has shown himself uninterested in harms inflicted on workers by employers. When the question is whose judgment to defer to, he readily defers to the reasoning and position of corporations over workers, and the executive branch over victims. Whether or not he’s aware that he’s doing this, it’s evident from his work that he considers those players more credible, more honest, and more worthy of protection. (As a purely empirical matter he has “written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.”) And he’s a bad person because, well, he’s a “textualist,” and textualism involves shedding morality and being blind to the stakes and consequences of one’s decision-making. (To see why a judge who simply “applies the law as written” and excises every ounce of human compassion from their work will end up being a horrible person, take our “You Be The Judge!” quiz.)

(Emphasis mine.)

There is no liberal case for Kavanaugh. The only case to be made is if you believe this fantasy that there is such a thing as a purely textualist judge, then ignore Kavanaugh’s actual record. Or, alternatively, if you don’t actually believe that, but support the values he puts forward. But I’m still not convinced that anyone with a shred of decency or integrity could support him.

The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.

Honestly, that’s just the cherry on top of the shit sundae that is basically any nominee the republican party would put forward. But yeah, it bears mentioning. It really doesn’t help that Kavanaugh seems to think the president is above the law - an opinion of his which clearly evolved since the Clinton administration.

What? I understand your position about Gorsuch, but why Kavanaugh? Is every GOP appointee from now until the end of time going to be bitched about because of Garland?

The president is “illegitimate”, so everything he does is the same. I thought everyone knew that!



Nobody said that. The point was about *this *President and *this *vacancy being illegitimate. Can you address that?

Sure. That’s nonsense. We did the “illegitimate” thing already. Not going to do it again.

UltraVires, it appears you hijacked John’s account.

So, no objections to the OP? Got it.

I don’t expect liberals to support Kavanaugh, but it doesn’t matter. He will be confirmed.

The satirical “quiz” linked to by that Current Affairs article is very entertaining, taking the piss out of strict textualism and, well, everything else.

Every time someone brings up Garland, I laugh in the inside. Every. Single. Time. It’s not as funny as ‘but her emails’, but it’s right up there.

I’m sure - “fuck the little guy” has basically been republican policy since, what, 2000 at the very latest?

Yeah, it’s absurdly slanted/biased.

The fact is that even if the Democrats win every seat up for election in the Senate this year, there WILL be a justice confirmed by the time they take office. Therefore, the only question that I see needs to be asked when considering whether to oppose a particular individual tooth and nail is: ‘will this choice be better or worse than the other most likely choices to be nominated by Trump?’

So, if by some miracle the Democrats managed to get Kavanaugh rejected, then what? Will the one that’s ultimately confirmed be more likely to be better, or worse? From what I’ve read, worse is a more likely outcome than better, and they absolutely 100% will not prevent a confirmation before the senate switches over; the Republicans will never allow it to drag on until the incoming senators are seated if the Democrats have won the majority.

Yeah, but I got a really good score.

Haven’t we kind of done the OP to death? “Republican judges are bad people because they follow the Constitution instead of the editorial board of the New York Times” - been there, yawned at that. And the part about how textualists make it up just as much as activists is just projection. Then we have to rehash how the Constitution obligates the Senate to rubber-stamp whoever a Democrat sends them.

You guys need new material.


“Let’s dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it’s especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on.”
If Judges are not unbiased, non-participatory referees of the law, what are they? Once you dismiss the idea that judges are supposed to be unbiased then legal disputes are just exercises in raw power. If that is true it is definitional that those without power are going to be hurt.

They’re supposed to be, yes, but they’re still human.

I’m against packing the court, but Gorsuch and any other judge (Supreme Court or otherwise) appointed by Trump should be impeached and removed from office. Trump has been corrupted by a foreign adversary and everything he’s done in office needs to be reversed. I accept that it might not be politically or pragmatically possible to do so, but that is the goal we need to drive toward.