Below is my column in The Hill newspaper on the Kavanaugh confirmation hearing and the opening statement of Sen. Sheldon Whitehouse attacking the conservatives on the Supreme Court as a virtual ideological cabal. I have always found Whitehouse an articulate and insightful member of the Congress. He was not alone in these attacks. However, I found the attack on the current justices to be unwarranted and distorted. There is a tendency when you disagree with a decision like Hobby Lobby to conclude that the motivations of the justices must therefore be raw politics. The possibility that the justices, including Justice Kennedy, are following a coherent jurisprudential view is dismissed in favor of partisanship.
Here is the column:
F. Scott Fitzgerald famously said, “The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.” If so, the start of the confirmation hearings for Judge Brett Kavanaugh this week displayed undeniable genius.
Indeed, Democratic Senator Sheldon Whitehouse of Rhode Island demonstrated just how nimble most members of Congress are in holding diametrically opposed positions without a whiff of self-awareness. He began his opening statement by asking, “When is a pattern evidence of bias?” It was meant to demonize the conservative majority of the Supreme Court as blind ideologues for voting together. This pattern, however, is equally found among Democratic nominees and their supporters.
Whitehouse described a voting pattern of a conservative cabal that he described as the “Roberts Five” of “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.” He noted his staff discovered that the five conservatives justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the conservatives vote so often as a five justice bloc?
It could reflect a common view of the law. Moreover, Whitehouse ignored the countervailing “pattern” of those four justices always found in dissent in the same 5-4 decisions. While the voting consistency of conservatives was treated as a vile demonstration of partisanship, the same consistency of liberals was treated as an inspiring demonstration of principle.
Putting aside Whitehouse’s own bias in identifying a pattern of bias, he, like many others, confuse principle with politics. We should want our justices to have consistent voting records based on their views of jurisprudence. The alternative is outcome driven justices who adopt conflicting interpretations to reach the “right” result. To their credit, liberal justices like Ruth Bader Ginsburg follow a consistent view of the Constitution, allowing for more evolutionary rights as part of a “living” Constitution. While this view certainly has many detractors over the fluidity and indeterminacy of the underlying rights, these justices have a reasoned and good faith foundation for their approach.
Despite Whitehouse’s refusal to acknowledge it, so do conservative justices. The “pattern” he finds in block voting reflects a consistent interpretation that is largely more textual and static. Both sides have had notable and suspicious departures in their approaches, but they largely adhere to long held jurisprudential approaches. Part of Whitehouse’s evidence was that “in 73 partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins. Every. Damned. Time.”
Of course, many of these cases involve opposing views that would support traditionally Democratic interests. Every. Damned. Time. For example, Whitehouse pointed to the recent decision in Janus v. AFSCME,which overturned a 40-year precedent in Abood v. Detroit Board of Education. Abood was a boon for unions in requiring employees to pay a union despite objections to its activities or political campaigns. The decision in Janus also reflected a longstanding view of the First Amendment that such fees constitute compelled speech. That decision expanded protections for free speech. Likewise, Whitehouse cited “bonus decisions advancing far-right social agenda” like Burwell v. Hobby Lobby, which expanded First Amendment protections of free speech.
Whitehouse cited CNN legal analyst Jeffrey Toobin in declaring that “Roberts has served the interests” of the “contemporary Republican Party.” This statement, of course, ignores that the liberal bloc of the Supreme Court supports traditional Democratic interests in the same cases, from supporting mandatory union fees of nonunion members to the denial of free speech rights for corporations in political campaigns. Whitehouse and others simply dismiss any explanation for conservative voting patterns as the result of partisan or extremist ideology.
Whitehouse railed against how this “Roberts Five” majority was secured through secret funding of confirmation and electoral campaigns by groups “with dark money. The identity of the big donors? A deep, dark secret.” Once again, Whitehouse and his colleagues ignore the millions spent by liberal groups with “dark money” sources. Just as conservative groups identified by Whitehouse have funded the campaign in support of Kavanaugh’s nomination, liberal groups did the same to support Elena Kagan’s nomination and to oppose the Neil Gorsuch’s nomination.
The Washington Post details how Demand Justice, a group run by former aides to Hillary Clinton and President Obama, has spent millions to try to block the Kavanaugh’s confirmation by setting up shop within another nonprofit. This allowed it to mask both the names of its donors and their contributions. Likewise, Sixteen Thirty Fund raises unlimited amounts of money from undisclosed donors for distribution to liberal causes.
Like the voting pattern, the use of the same “dark money” corporations by the left are dismissed while conservative groups are demonized. Why? Because “they” are wrong and “we” are right. Democrats proved equally selective on the question of qualifications. Whitehouse denounced Kavanaugh as a “Republican political operative his whole career, who has never tried a case.” In doing so, he ignored the same lack of litigation experience by Kagan, who additionally had no experience as a federal judge, unlike Kavanaugh with 12 years on the bench. Yet, Whitehouse enthusiastically supported Kagan during her nomination.
Finally, Whitehouse denounced Kavanaugh’s use of “confirmation etiquette” as a “sham.” He demanded that Kavanaugh answer specific questions about his willingness to overturn cases like Roe v. Wade rather than “telling the committee fairy tales about stare decisis.” Yet, such “fairy tales” were happily accepted by Whitehouse and his colleagues when uttered by Democratic nominees. When asked about the case, Kagan replied, “I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to presidential weight. The application of Roe to future cases and even its continued validity are issues likely to come before the court in the future.”
Whitehouse seems either blissfully unaware or willfully blind to the clear pattern shown by Democratic appointees. Since both parties show the same patterns, it does not constitute any evidence in distinguishing Republican from Democratic nominees. Ironically, one of the “Roberts Five” is retired Justice Anthony Kennedy, who has been praised by most Democratic senators for his independence and integrity. Kennedy was the “swing” vote not because the four liberal justices swung to him. The liberal justices remained just as fixed as the conservative justices. It was Kennedy who followed a principled path that occasionally took him to the left over concerns for due process or personal dignity.
However, Kennedy’s principled stands did not make his colleagues unprincipled. The four justices to his right and the four justices to his left simply held more unyielding jurisprudential views. You can disagree with those views without seeing a consistent approach as evidence of bias. In other words, what Whitehouse decried in the hearings is actually a pattern of principle on both sides of the Supreme Court.