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Court pick causes dread? Win elections

July 13,2018 01:10

When it comes to court nominations, both sides in the U.S. Senate about to consider President Donald Trump's nomination of Brett Kavanaugh to the Supreme Court have plenty of grievances. Yes, the Republicans stole a court seat when they refused to even ...


Express-News Editorial Board
Published 5:26 pm CDT, Thursday, July 12, 2018

Photo: Erin Schaff /The New York Times

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Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, in between meetings on Capitol Hill on Wednesday.
Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, in between meetings on Capitol Hill on Wednesday.
Photo: Erin Schaff /The New York Times

Court pick causes dread? Win elections
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When it comes to court nominations, both sides in the U.S. Senate about to consider President Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court have plenty of grievances.
Yes, the Republicans stole a court seat when they refused to even consider President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia, who died in February 2016. They argued that voters should decide which president got to make the nomination — with a campaign in full swing in Obama’s last year of his final term, though Justice Anthony Kennedy was confirmed in the last year of the last term of Ronald Reagan.
Then, later, with Trump in the White House, Senate Republicans did away with the 60-vote rule to prevent a Democratic filibuster of nominee Neil Gorsuch. But, earlier, Democrats did away with the 60-vote rule for appellate court nominees (though sparing Supreme Court nominations). And Democrats played hardball in filibustering Miguel Estrada for the D.C. Court of Appeals in 2002 and in blocking Robert Bork in 1987 (six Republicans joined 52 Democrats to accomplish that).
But we will use the same rationale when it comes to Kavanaugh as we used when backing confirmation for now-Justice Neil Gorsuch last year. Is he qualified? Barring disqualifying disclosures yet to come, Kavanaugh is.
Fearful that his confirmation will solidify a rightward tilt for decades on the high court? Well, first, there is virtually no way this confirmation can be blocked. So, what’s a more useful exercise if you fear this tilt?
Win elections (at state levels, too, to prevent gerrymandering and other assaults on rights). But like it or not, Trump won in 2016. Yes, an Electoral College win counts even if he lost the popular vote by nearly 3 million.
Yes, vet Kavanaugh as carefully as the process allows, but if nothing disqualifying emerges, then getting red in the face about alleged lack of purity on your issues is an exercise in futility.
Is Kavanaugh respectful of precedent and settled law? What’s his understanding of the Constitution and its application to the law? If the investigation into the president reaches the Supreme Court in a case, can Kavanaugh sit in impartial judgment?
There are questions that get to Kavanaugh’s qualifications. The problem: Nominees are allowed to dodge many of them on the premise that they can’t comment on issues likely to come before them.
But want to have a check on judicial overreach? It’s long past time for the long game. Elect people to Congress — allegedly a co-equal branch of government — who will do their jobs. These midterm elections will be your first opportunity.

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