Pepperdine School of Law Professors Share Reactions to Kavanaugh’s Confirmation Process

Infographic by Makena Huey

Professors at the Pepperdine School of Law are sharing their reactions to Associate Justice Brett Kavanaugh’s recent Supreme Court confirmation process in light of their own legal expertise and experience.

President Donald Trump nominated Brett Kavanaugh as associate justice of the U.S. Supreme Court July 9 and his confirmation hearings lasted from September 4 to September 7, according to CNN. On September 12, The Intercept reported that Senator Dianne Feinstein had a letter detailing an accusation against Kavanaugh and on September 16, Dr. Christine Blasey Ford, who testified before the committee, announced to The Washington Post that he sexually assaulted her 36 years ago. Kavanaugh denied her allegation and was confirmed to the Supreme Court with a 50-48 vote October 6.

“The Kavanaugh hearings demonstrate one of the big, serious flaws in our constitutional system,” Professor of Law Barry McDonald said of Americans’ tendency to vote based solely on political affiliation. “The Emperor really has no clothes.”  

“The Kavanaugh hearings demonstrate one of the big, serious flaws in our constitutional system. The Emperor really has no clothes.”  

Reactions to Kavanaugh’s hearings and confirmation:

Professors agree that their unique backgrounds in law have greatly influenced their reactions to recent Supreme Court events.

McDonald, who clerked for Chief Justice Rehnquist, said that his experience teaching constitutional law has shown him the importance of judges remaining unbiased. Although the Supreme Court claims to be a non-partisan institution, nominees’ political affiliations are influential. “That insight essentially tells me that the Supreme Court… has been damaged by these Kavanaugh hearings,” McDonald said.

The proceedings harmed Kavanaugh’s character, and the public’s confidence in Congress and judges. It would be universally beneficial if the Senate returned to its advice and consent role, approving nominees who are well-qualified professionally and personally. “Most rational Americans understand that Senate hearings on a Supreme Court Justice should be conducted in a dignified manner, not degenerate into a media circus,” wrote Professor of Law Robert Pushaw, who specializes in constitutional law and federal courts.

Because Kavanaugh was replacing the more moderate Justice Kennedy at a time when society is increasingly aware of interactions between genders, conflict was inevitable. Conservative and liberal justices’ differing theories of constitutional interpretation and the addition of sensitive topics resulted in further polarization, said former U.S. Ambassador Douglas Kmiec, professor and Caruso family chair in constitutional law.

“We have to our disadvantage politicized the appointment of judges, and as a result, the confirmation process — which used to look like a professional personnel decision — now looks like a national election,” Kmiec said.

While the second hearing negatively impacted everyone, the first was similarly inconsequential to previous proceedings and although it may have been entertaining, it failed to determine whether or not Kavanaugh was qualified, said Kmiec, who has participated in the confirmation process of three Supreme Court nominees as the head of the Justice Department’s Office of Legal Counsel for Presidents Ronald Reagan and George H.W. Bush.

Opinions on Ford’s allegations:

Professors agree that Ford’s allegations should have been addressed privately to protect both her and Kavanaugh.

Ford’s testimony was credible, but both parties handled the allegations poorly. “It was really unfortunate how the democrats… didn’t present it to Kavanaugh when he actually had a realistic opportunity to withdraw his name from consideration, leaving his reputation and his family in tact,” McDonald said.

Rather than leaking Ford’s allegation, Senator Feinstein should have submitted it to the FBI during the investigation. “Making Ford’s allegation public created a firestorm, which was intensified by increasingly wild and uncorroborated allegations,” Pushaw wrote.  

Although Ford appeared to be genuine, she could not recall important details, she did not disclose the event until recently, the four people she said were at the party denied the recollection or occurrence of the assault and the six previous FBI investigations revealed no issues. The hearing was not designed to determine whether sexual assault is a problem, but whether there was enough evidence to prove that Kavanaugh was guilty of sexual assault, and the majority of senators did not not find that evidence, Pushaw wrote.

“The Senate shouldn’t have been putting Dr. Ford on display to evaluate whether her tears where genuine or not,” Kmiec said. “We put (Kavanaugh) in the position of having to prove the improvable, as well.”

“The Senate shouldn’t have been putting Dr. Ford on display to evaluate whether her tears where genuine or not. We put (Kavanaugh) in the position of having to prove the improvable, as well.”

When sensitive, confidential information arises, members of the Senate judiciary committee should summon a closed executive session in order to protect both the nominee and the whistleblower’s reputations, Kmiec said.

“The net result now after Kavanaugh is that nobody is encouraged to be a good citizen. Where is the next Dr. Ford going to come from?… And where’s the next Brett Kavanaugh going to come from?” Kmiec said. “We lose when we don’t have good men and women willing to serve on the bench or good men and women willing to come forward with these things that might affect a person’s judgment.”

Thoughts on Kavanaugh’s judicial temperament:

Professors have a wide range of views on Kavanaugh’s judicial temperament.

Kavanaugh is relatively open-minded and has been willing to write about about different issues. The speculation surrounding Kavanaugh’s judicial temperament is misleading because White House counsel instructed him to be emotional, McDonald said.

Democrats criticized Kavanaugh’s emotional denial of Ford’s allegations, but “had Kavanaugh calmly refuted Ford’s claims, his opponents would have portrayed him as a callous monster who did not care about sexual assault,” Pushaw wrote. If this accusation were false, his anger was a normal human response and his years as a judge have displayed his even judicial temperament.

“[I know] Brett Kavanaugh and can attest to his legal skill and personal integrity,” Pushaw wrote. “[He is] a bright, hard-working, scholarly judge who had an impeccable personal reputation.”

Kmiec said he has met Kavanaugh several times. He thinks he successfully fulfilled his Court of Appeals responsibilities and respects his constitutional interpretation.

In order to apply the law fairly, a justice must be capable of hearing opposing viewpoints. Kmiec said Kavanaugh’s second appearance before the committee convinced him that he was not the right appointment because he demonstrated a sharp political view of the judicial role.

“I’m sorry that he was put in that position, but he didn’t acquit himself properly for the Supreme Court,” Kmiec said. “I don’t think you can have a personality that is so temperamental and so immature professionally serving on the Supreme Court.”

Predictions of future Supreme Court rulings:

Professors agree that although Supreme Court justices take an oath to administer justice equally to everyone regardless of their personal ideologies, the fact that the majority of justices are now conservative will inevitably cause future rulings to become increasingly conservative.

“A well qualified justice would be a justice that puts his or her political preferences and ideologies aside in deciding a case and ask what result the law compels,” McDonald said. “If I truly applied that definition, I don’t think any one of the supreme court justices are qualified today because none of them do it.”

“A well-qualified justice would be a justice that puts his or her political preferences and ideologies aside.”

Because Kavanaugh is a conservative Republican, he might reverse liberal gains in constitutional law, such as abortion and affirmative action, Pushaw wrote.

Justices have not administered justice equally to the poor and the rich, and they rarely rule against their personal beliefs in favor of an objective assessment of what the law requires, Kmiec said.

It is unfair “to have five individuals who serve for life on a court decree what your laws will be, how you shall live, without you having a chance to hold them accountable in an election,” McDonald said.