Senator Mitch McConnell recently accused opponents of Judge Brett Kavanaugh’s nomination to the Supreme Court of moving the goalposts. While he did not elaborate, what the phrase means is something like, “They believe that their current efforts to thwart the nomination will fail, so now they are opening new attacks in an effort to stop him.”
The problem for McConnell and Kavanaugh and all of us is that there is only one set of goalposts. They don’t move. They are: have a good government. But what does that mean?
Below I will outline the facets required for a legitimate and useful justice, which can also serve as a place to look back for future nominations so that McConnell and his spawn cannot say the goalposts have moved.
- Legally qualified
- Of good character
- Relatively non-partisan
A justice or judge should have a solid understanding of the Constitution and the law. E should know that the law is not always adequate and be willing to admit that. E should be also willing to admit that e is not perfect at interpreting. But their record as legal professionals should show distinction and merit as contributors to a diverse and ingenuitive body.
E should lack moral turpitude, and be repentant for past mistakes and malfeasance. E should be respectful of the other branches of government, of eir critics, and of eir colleagues. E should be candid when questioned.
Especially in these times, when Republicans fail to credit the Democrats for having a tough time dealing with an outrageous administration, and Democrats feel particularly vulnerable and overreact in some cases, the judiciary should not be partisan. It should recognize that it is holding a pair of scales, not a paper fan emblazoned with a candidate’s name.
A judge (again, this speaks to character) must know when to bite eir tongue. Nobody expects em to be wholly disinterested in the political environment, but e should be measured eir interest, and e should refrain from partisan attacks entirely. If speaking about a political figure, a judge may comment on the person, but should not connect that to the party.
Re: Judge Kavanaugh, he possesses a useful measure of legal qualifications and experience. There are some spots of trouble, usually in dissents, which is where they usually are. There are political concerns about how he would approach some issues. But those are politically contentious issues, and like it or not, we will have to find political solutions to them. People will be harmed in the process, but I do not find that a per se reason to disqualify him.
Abortion, for example. Judge Kavanaugh would likely weaken women’s rights. Republicans like that about him. Democrats dislike it. They can and should vote accordingly, as Republicans know that if he does rule in that fashion in a future case, it will cost them politically. Just as Democrats knew that trying to open access to healthcare would cost them and moved forward anyway.
On the matter of character, Judge Kavanaugh has a mixed record. There are spots of trouble alleged in his formative years and in college. His professional record remains relatively clean by the available information (which is, unfortunately, artificially constrained and therefore not reliable). And his behavior in response to allegations against him showed some glaring examples of bad behavior.
At the very least, he showed disrespect to the country in his testimony before the Senate Judiciary Committee, and while he apologized to a senator, he has not apologized to the nation. As the Senate represents the nation, it is owed an apology unto itself.
Of non-partisanship, the man can make no claim to it. He served as a heavy-handed partisan on multiple occasions, and his public behavior at the hearing was overtly partisan in the most egregious fashion. It would be a gross mistake, as it has been in the past, to install a partisan hack as a justice.