For conservatives, confirming Judge Brett Kavanaugh to be the next Supreme Court justice is an easy call, for all the reasons my colleagues have outlined. But is there a liberal case for confirming Judge Kavanaugh? According to Akhil Reed Amar, one of the country’s most distinguished legal scholars, the answer is yes.
Writing in the New York Times, Amar, an idiosyncratic liberal who describes himself as a liberal originalist, argues that Democrats must recognize that “they have limited options”: As long as Republicans control the presidency and the Senate, Democrats won’t be in a position to install a justice of their choosing. Rather than obstruct Judge Kavanaugh’s confirmation, he suggests a compromise: First, Senate Democrats will agree to vote yes or no, and those who vote no will be obliged to “publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead.” Second, Judge Kavanaugh will agree to forthrightly answer questions about his judicial philosophy, up to and including whether he believes notable past cases were rightly decided. This would, however, require a measure of forbearance:
Everyone would have to understand that in honestly answering, Judge Kavanaugh would not be making a pledge — a pledge would be a violation of judicial independence. In the future, he would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders. But honest discussions of one’s current legal views are entirely proper, and without them confirmation hearings are largely pointless.
Though it is hard to imagine Senate Democrats embracing Amar’s compromise, and though I suspect Judge Kavanaugh and his allies would be reluctant to go down this route themselves, I find it rather appealing. Asking those opposed to Judge Kavanaugh’s confirmation to identify plausible candidates they’d prefer would have a chastening effect. (Indeed, I would have liked to see Senate Republicans name their preferred alternatives to Judge Merrick Garland.) And confirmation hearings along these lines would greatly enrich civic understanding of high-stakes constitutional questions — certainly more so than the usual back-and-forth of badgering questions and evasive answers.
Elsewhere, there have been calls for more ambitious structural reforms, such as fixed judicial terms, which Amar himself has endorsed in the past. I’ve grown more skeptical of the idea, not least because I fear it might exacerbate the politicization of the Supreme Court. That said, Amar’s proposed compromise might pair well with fixed terms: While the latter would lower the stakes of confirmation battles (at least in theory), the former would make them more civilized and informative.