One of the more ridiculous recurring tropes of Republican political discourse is the claim that to point out that a Republican nominee favors the positions long favored by conservatives is dirty politics. The wellspring of such arguments, of course, is “Borking” — i.e. the assertion that Ted Kennedy’s entirely accurate description of Robert Bork’s public positions was the ultimate act of incivility.
As four legal scholars observe with considerable support at Take Care, we are of course getting the same scam with Brett Kavanaugh:
It’s useful to look back at these statements, chiefly because — as Lawrence Hurley and others have suggested — the case made for Kavanaugh before the President officially announced the nomination differs markedly from the case made for Kavanaugh after the President officially announced the nomination. As Hurley noted, before the nomination, Kavanaugh’s supporters depicted him as a “warrior” for conservative causes like religious liberty, and as someone who would never go soft on issues like abortion. After the nomination, Kavanaugh’s backers depicted him as an open-minded jurist whose views are genuinely unknown on a litany of issues, including abortion, and have suggested he should be evaluated based on his credentials and qualifications alone.
The contrast between the pre- and post-nomination statements is also interesting because it contains two different narratives about how Supreme Court nominees should be selected and evaluated — based on their substantive views, or the shininess of their resume? The contrast also underscores the efforts to obfuscate what this President and the Republican party have run on to date — appointing Supreme Court Justices who are pro-life and would overturn Roe v. Wade.
There is more still. The contrast between the pre- and post-nomination statements also highlights the Republican Party and conservative legal movement’s unapologetic willingness to announce a substantive vision for the Supreme Court and the federal courts — their desire to have the courts advance certain causes and produce certain results. In some ways, that is unsurprising. But it is still worth underscoring that the Republicans’ pre-confirmation Kavanaugh sales pitch has not really been about Judge Kavanaugh’s “forensic rigor” or “methods of legal interpretation” or “adherence to the rule of law,” which is typically the line we are sold. All of these things can be true, and many scholars believe that the rule of law contains a substantive component. But the conservative media strategy is useful for lefties to think about as they reflect on what they should be saying and doing about the federal courts, and whether to give in to the other side’s attempts to shame them for considering things such as substantive outcomes, or basic and rudimentary demands of justice.
Needless to say, the meaningful and accurate statements are the ones made before there was a felt need to bullshit about what kind of justice he would be.