The Constitutionalist Case for Brett Kavanaugh to Withdraw His Nomination

Editor’s Note: This piece is one of two responses to the confirmation proceedings of Judge Brett Kavanaugh to the Supreme Court. It assesses the implications of the Senate Judiciary Committee hearings on judicial legitimacy. In a separate piece, members of Women in Public Policy (WiPP) address what the Kavanaugh confirmation process means for American women and what it reiterates from the 1991 Anita Hill hearings.

By Tim Tsai

Every major publication in the nation is pouring out ink by the gallon on the testimonies Dr. Christine Blasey-Ford and Judge Brett Kavanaugh delivered last Thursday. Many are choosing to talk about Dr. Blasey-Ford’s credibility or whether her testimony is vindicated or damned by certain lapses in her memory. Others are focusing on Judge Kavanaugh’s personal attacks on Democratic members of the Senate Judiciary Committee and his overall combative demeanor. This article seeks to go beyond the theater and drama of the hearings to get at the heart of why Judge Brett Kavanaugh’s confirmation to the Supreme Court would be damaging to the High Court’s place in our constitutional order. This article concludes that given the political situation and the threat to the Supreme Court’s legitimacy, the best course of action would be for Judge Kavanaugh to voluntarily withdraw himself from consideration for the position.

The Situation:

On September 27th, Dr. Christine Blasey-Ford and Judge Brett Kavanaugh riveted the nation with their testimonies before the Senate Judiciary Committee. Dr. Blasey-Ford alleged that Judge Kavanaugh had sexually assaulted her at a house party in 1982. For four grueling hours, the Stanford professor defended her story with heart-wrenching testimony before a specially-selected female sex crimes prosecutor who spoke for the all-male Republican members of the Judiciary Committee. Judge Kavanaugh took the stand immediately after Dr. Ford; his testimony proved to invoke just as much emotional turmoil, though for different reasons. Judge Kavanaugh launched into an irate defense of his character, a vehement denial of the charges Dr. Blasey-Ford had levied against him, and a highly partisan exposition against the Democratic members of the Committee, lambasting them for what he called “…an orchestrated political hit.” Following the hearing, Judge Kavanaugh’s nomination was thrown into doubt and the FBI is concluding a one-week investigation into the allegations. As of this writing, the Senate Republican leadership and the White House are still pushing for Kavanaugh’s candidacy.

The Problem:

Dr. Blasey Ford (and, at the time of this writing, two other women) have levied credible allegations of sexual assault against Judge Kavanaugh. However, the disparate responses from partisan stakeholders have deeply politicized this nomination. The right claims that raising allegations without providing more evidence beyond witness testimony violates Judge Kavanaugh’s right to due process and presumption of innocence. The left claims that this isn’t a trial, but a job interview and that any reasonable doubt about the candidate’s fitness for office would be disqualifying. As of right now, there is no agreement or compromise in the Senate about which interpretation to use in this particular confirmation process. If, however, the allegations are proven true to a standard that would satisfy everyone (and there is legitimate disagreement over what standards of evidence would satisfy Congress, the judiciary, and the general public), then this should be an open-and-shut misconduct and perjury case. Judge Kavanaugh’s nomination wouldn’t just be “over” as Jeff Flake stated in an interview on Sunday, but he would probably lose his current judgeship and face up to five years in prison. However, the evidence available in this case — despite what we know now about the prevalence of sexual harassment and assault committed by privileged men in the #metoo age — is not clear enough for the entrenched partisan warriors in the Senate to come to a consensus.

On September 30th, Rachel Mitchell, the outside counsel whom Senate Committee Republicans employed to question Dr. Blasey-Ford and (to a limited extent) Judge Kavanaugh, sent a memo to the Judiciary Committee stating that “[I do not] believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard” by which a prosecutor would bring a case to trial. Mitchell’s assertion came despite the fact that she herself admitted that there is “no clear standard of proof for allegations made during the Senate’s confirmation process.” This is a common problem for allegations that arise during the Senate confirmation process which are short of clear and damning evidence that meets evidentiary standards of a court of law. In this polarized age, absent a clear consensus based on the evidence, individual political views often determine where people stand on the question of how to treat these kinds of allegations.

Judge Kavanaugh is not the first Supreme Court nominee to face such allegations. The confirmation of Clarence Thomas in October of 1991 was a similarly acrimonious affair, but the partisan battle lines around the nomination at the time were not as hardened as they are today. Indeed, eleven Democrats crossed party lines to vote for Justice Thomas and three Republicans broke ranks to vote against their party’s nominee to the Supreme Court.

The absence of impartial arbitration in this confirmation process is a threat to the independence of the court because the public will be unable to differentiate the judge’s decisions from the party that backed him as a nominee. Additionally, Ronald Brownstein reports in his piece in The Atlantic that all the proceedings are taking place before a backdrop of byzantine parliamentary knife fighting which would have polluted any nominee with the stench of rank partisanship. Senator Mitch McConnell set the stage for this nomination by first holding the late Justice Scalia’s seat open for almost a year, refusing even to hold a hearing for President Obama’s nominee, a boldfaced partisan move which ultimately paid off when President Trump won the 2016 election. Judge Kavanaugh’s open attacks against the Democratic members of the Judiciary Committee and his conspiratorial remarks about how the entire affair was a plot to extract “…revenge on behalf of the Clintons” did not exactly placate those who worried about his impartiality. The co-mingling of political party and judicial appointee  ensures that any future confirmation fights will be open to similar ugly battles. As a result, reasonable onlookers could refer to Supreme Court justices as either “Republicans” or “Democrats,” “Conservative” or “Liberal.” Any 5-4 ruling in the future becomes a strictly partisan decision rather than a decision that can stand on its constitutional merits.

The founders never intended for the Supreme Court nomination process to be like this. The Supreme Court was meant as a check on both the executive and the legislature against actions which would violate the constitution, not as a bonanza for partisans to fight over or as a weapon to be used to circumvent election outcomes. Alexander Hamilton reasoned in Federalist Paper No. 78 that since the judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society,” it was the most at risk of being co-opted by the other two branches of government. The only defense the court had against such co-optation would be its judgment and the quality and “fortitude” of the judges to stand against an encroaching legislature. The court cannot freely pronounce judgement or recruit judges of character and “fortitude” if it is subordinated to another branch of government (or by extension a political party).

Conversely, as Hamilton argues, if the court strays so far from the Constitution in its interpretations that the country loses trust in the impartiality of the institution, then the other branches would be free to ignore or infringe upon the court’s authority. The court’s own integrity and the public’s trust in the court’s decisions are the only tools the court can use to ensure that it stays independent and that its decisions are enforced.

We’ve Been Here Before:

While these confirmation fights may seem novel and grotesque to modern audiences, a brief look at history tells us that we’ve been here before.

On November 30th, 1804, a scant 17 years after the Constitutional Convention, Thomas Jefferson and the Democratic Republicans led an effort to impeach Justice Samuel Chase, a Federalist, from the Supreme Court on the grounds that he had behaved in an overtly partisan way on the bench, “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.” It was the first and only time in the nation’s history that a Supreme Court Justice has been impeached, and though the House approved the eight articles of impeachment against Justice Chase, the Senate failed to convict him.

Richard Lillich describes the proceedings in his 1960 article in the American Journal of Legal History. The Senate at the time was composed of nine Federalists and 25 Democratic Republicans, and the vote still failed with “at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article.” The failure to impeach Justice Chase put an end to the use of impeachment by Congress to punish partisan Supreme Court justices, but it also had the effect of forcing judges throughout the judiciary to both tone down their partisan rhetoric on the bench and withdraw from all overtly partisan political activities.

We must keep in mind that this period was not at all dissimilar to our own. Overtly political media told their own stories about the case, and the fissure between the Democratic Republicans and the Federalists was every bit as wide and unbridgeable as the gulf between Democrats and Republicans today. Still, bipartisanship won out in the end. Even the presiding officer, one Aaron Burr, “fresh from his duel with Hamilton, and under indictment in two States”, was widely seen as a fair and impartial arbiter by both sides despite literally killing a man over political differences.

From the late 1890s into the 1920s, the country saw the rise of spiraling inequality and social upheaval during what is now known as the “Gilded Age.” This period, like ours, saw massive populist revolts against the perceived corrupt establishment. Further, citizens questioned the impartiality of a court which seemed so hostile to labor interests, and many measures were proposed to limit the power of the courts or to make them more responsive to popular opinion, but these measures ultimately failed.

President Roosevelt’s fight with the court in the 1930s over his New Deal legislation reflected the public’s frustration with the court’s decisions in striking down key New Deal programs. This ultimately led to Roosevelt proposing a court-packing scheme in 1935. Recognizing the danger that such a scheme posed to its independence during a time of profound national crisis, the court began siding with the New Dealers in what was called “the switch in time that saved nine.”

From this brief review of the past, we see that though the court has sometimes acted as an accomplice of other institutions during its long and turbulent history, it can find its way back, but only if key individuals decide to place the health and legitimacy of the institution before their own personal ambitions or political loyalties.

The Path Ahead:

It is typically unwise to join the masses of court-watchers and speculators who try to predict how this nomination process will turn out, but the following are three scenarios that reasonable observers can see happening:

  1. The most likely scenario is that the FBI investigation (attenuated as it is) turns out to be inconclusive and Judge Kavanaugh will be confirmed to the Supreme Court along a strict party-line vote. This will have a highly negative effect on the country’s perceptions of the Court’s impartiality and will invite challenges to its decisions in the future. Should the Democrats win control of the House or Senate in 2018 or 2020, they will certainly reopen the investigation against him, and may even consider impeachment. This will undoubtedly harm the Court’s credibility during this time, hurt Republicans in elections, and will continue to tear the country apart as the Republicans retaliate with their own parliamentary moves.
  2. A less likely scenario would be that enough key Republicans defect on the final confirmation floor vote and side with Democrats against Judge Kavanaugh. Senators Jeff Flake of Arizona and Lisa Murkowski of Alaska are the most likely Republicans to make the move, but they would most likely face almost permanent ostracization from the party. The Republican Party’s strategy of securing friendly Supreme Court majorities is a project decades in the making and the stakes are too high for the party leadership to tolerate dissent on this issue. This line of reasoning also applies to the White House voluntarily withdrawing its nomination of Judge Kavanaugh. It is simply too much of a prize for the President and his allies to give up, and to cave into a perceived “political hit job” would be tantamount to surrender and the Republicans will not tolerate it.
  3. The final scenario would be for Judge Kavanaugh to voluntarily withdraw himself from consideration. Given his performance before the Judiciary Committee the previous week, this is highly unlikely, but this would be the least bad outcome for this process. Judge Kavanaugh’s voluntary withdrawal done in the name of preserving the integrity of the judiciary would not mean an admission of guilt on his part and save his legacy from the taint of rank partisanship. It would also spare the Republicans from having to stick by a man who would forever have a cloud hanging over his head about the way he arrived on the Supreme Court and all the investigations and impeachment fights that would inevitably follow. Finally, it would save the Supreme Court from having to welcome a justice who would have been confirmed in the most toxically partisan environment in recent memory. It would also restore some semblance of legitimacy to their decisions, especially the close ones that have partisan implications. While Judge Kavanaugh’s withdrawal would not solve all the problems plaguing the court, it would at least prevent further injury to the Supreme Court’s legitimacy.


At UC Berkeley we live in a veritable mecca of progress, innovation, open-mindedness, and tolerance for racial difference. It is reasonable that we oppose all Supreme Court decisions that run counter to our sensibilities, seeking decisions instead which suit our preferences. It is even required for us to vehemently fight against any Supreme Court decisions which threaten the fundamental rights of all people, whether citizens or not.

In our righteous indignation over the injustices which have plagued our country’s long history, it is tempting to overthrow the institutions that have either directly or indirectly supported systems of oppression and hate which have plagued our nation since its birth. The Supreme Court is one such institution that has a long, checkered past of delivering justice for some, but not others. It has had a hand in perpetuating the nation’s original sin by denying the rights of African Americans via Dredd Scott, or more recently depriving the freedoms of Japanese-Americans via Korematsu in a fit of fervor during the most devastating war our species has ever known.

In response to these staggering injustices, liberals may seek to employ these same partisan tactics to tear down the conservative justices and replace them with their own preferred justices. It is tempting to call for packing the court or imposing tenures and term limits as David Faris suggests. But we must possess the wisdom and foresight to understand that alongside the Supreme Court’s capacity for great injustice exists the possibility that it could one day be the guarantor of our freedom against the tyranny of those who would seek to deprive us of it, as the country’s founders intended it to be. It can only perform this function as a fully independent and impartial entity separate from the other branches.

Therefore, it is important for us to work towards a truly independent judiciary by defusing the partisan confirmation fights and bringing cool-headed judgment, reason, and above all, compromise back into the confirmation process.

In a better world than ours, Dr. Blasey-Ford would have a safe, unbiased process where she could have her grievances heard by an impartial authority showing her the respect and dignity she is due as a survivor of sexual assault. In a better world than ours, Congress would take the issue of sexual assault and sexual violence seriously enough to put aside petty partisan fist fighting to give due process to both Judge Kavanaugh and Dr. Blasey-Ford. A better politics than ours would prize impartiality and commitment to reasonable constitutional interpretation over partisanship for judicial nominees.

We do not live in a better world, but in order to begin to improve the world we have, Judge Kavanaugh should withdraw from consideration for the Supreme Court. Concluding this ugly proceeding would preserve what remains of the High Court’s veneer of impartiality and save the nation from furthering this toxic fight in a hyperpolarized era.

Tim Tsai is a Master of Public Policy candidate at the Goldman School of Public Policy.