president nominated the best qualified candidate regardless of politics and the Senate treated its advice and consent role seriously. Were that the case, is Brett Kavanaugh qualified to be a Supreme Court Justice?
The question of course hinges on what it means to be “qualified?” Recently I did a radio interview on the second day of the Kavanaugh confirmation hearings and said that he was “probably” qualified to be a Supreme Court Justice. Almost immediately I received an email from a partisan Trump supporter excoriating me for using the word “probably.” It apparently was clear to him well before the hearings had finished that Kavanaugh was qualified, no matter what the rest of the hearings would tell us. I responded by saying my use of the word was to suggest that until all the information was in and hearings were over I could not reach a final conclusion on whether he was qualified. One needed to keep an open mind and listen to all the testimony and not pre-judge someone based on partisanship or ideology.
Unfortunately, this person was not atypical–the Kavanaugh hearings thus far did little to provide information on his qualifications and few if any Democrats and Republicans on the Senate Judiciary Committee, the Senate as a whole, or even the public in general, seem to have been influenced by the testimony and evidence. The Kavanaugh hearings were merely the overture for the 2018 elections. But now with the accusations of sexual assault the outcome of the Kavanaugh confirmation is open, and it renews the question–what does it mean to be qualified to be a Supreme Court Justice?
Qualified is not defined anywhere in the Constitution–there is no language in Article II, Section 2 that directs what presidents should consider when making judicial appointments, the same is true for what senators should consider when offering “advice and consent.” This renders “qualified” a matter of political judgment, leaving open the factors to be considered.
To be qualified starts with technical skills–knowledge of the law, legal reasoning, past experiences, including as a judge. By those accounts Kavanaugh is qualified–even highly qualified as a judge according to the American Bar Association. If being a judge were simply a merit system and politics or ideology were not factors affecting the courts, then perhaps a discussion of Kavanaugh’s qualifications would end here.
But it does not end here. Political science research shows that the ideology of judges often matters in decision making. As Judge Richard Posner once said about Robert Bork when the latter was nominated to the Supreme Court, judges are not potted plants. Judges have to make difficult calls that demand good judgement (that is why we call them judges). Judging is not purely mechanical and value free, if it were we could replace judges with computers. Thus, even without politicizing the judiciary, more than mere technical skills are necessary to determine the qualifications of one to be a judge.
One’s judgment or views matter. Would it not be valid to consider whether a judicial nominee believed in civil rights for all? The Bork hearing was political, but political included a question regarding whether his views were within the accepted mainstream of legal orthodoxy. Justices on the Supreme Court are trustees for the Constitution because they interpret it, and part of advice and consent by the senate should be to determine whether a nominee can be trusted to serve in that trustee role. There is no way one can ask nominees about all issues they may confront as a justice, at some point it is about whether one can trust their judgment. Thus, character matters too as part of ascertaining qualifications or fitness to serve.
One of the toughest issues is determining what factors in one’s private life, in any, are relevant to public service (or for any job). Does it matter that one drinks, smokes, or holds certain opinions? At one time infidelity, being a member of the LGBTQ+ community, or doing a marijuana joint was considered relevant and a strike against a candidate. It is less clear where and whether these factors hold as much sway as they used to. Moreover, where do we place past acts, especially bad ones, in terms of judging one’s present character. Do acts committed one, five, ten, or 30 or more years ago speak to one’s present character? Sometimes yes, sometimes no. People change, mature, or evolve, and sometimes not. Aristotle referred to character as “habits of the heart.” Doing something once does not necessarily speak to our character, but when it becomes a habit it does.
But now think also about the concept of mercy and forgiveness. As eloquently stated in Shakespeare’s Merchant of Venice: “The quality of mercy is not strained.” By that, should all of us not be entitled to forgiveness and a second chance? In the case of Kavanaugh, let us assume the allegation of sexual assault against him is true and assume he had been convicted of a crime and paid his legal debt to society. Should we not forgive him and look at the rest of his life to determine whether he is qualified, or does one bad act disqualify him for life? For many who say we need to give ex-felons a second chance, the answer would be to give a second chance, but one still needs to place this one bad act within a larger picture to ask what it says about his character. In some cases, one bad act may be disqualifying, in others not.
But here, Kavanaugh is accused of a bad act, and assume even that the allegations are true, does this behavior render him unqualified to sit as a Supreme Court Justice? There are competing answers taking us in different directions, suggesting even under an ideal situation there is no clear answer to what it means to be qualified to sit as a Justice.
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