He starts saying how hard it is for him to write this article.
This is an article I never imagined myself writing, that I never wanted to write, that I wish I could not write.
If I were a senator, I would not vote to confirm Brett Kavanaugh.
These are words I write with no pleasure, but with deep sadness. Unlike many people who will read them with glee—as validating preexisting political, philosophical, or jurisprudential opposition to Kavanaugh’s nomination—I have no hostility to or particular fear of conservative jurisprudence. I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so. I have also spent a substantial portion of my adult life defending the proposition that judicial nominees are entitled to a measure of decency from the Senate and that there should be norms of civility within a process that showed Kavanaugh none even before the current allegations arose.
After weighing the evidence carefully, he comes to this:
To be clear, I am emphatically not saying that Kavanaugh did what Ford says he did. The evidence is not within 100 yards of adequate to convict him. But whether he did it is not the question at hand. The question at hand is how a reasonable senator should construct the evidence to guide a binary vote for or against elevation of a judge to a lifetime appointment to the highest court in the land. By my read, we have two witnesses who both profess 100 percent certainty of their position—one whose testimony is wholly credible and marginally corroborated in a number of respects, and the other whose testimony is not credible on a number of important atmospheric points surrounding the alleged event.
It’s not a tie, and it doesn’t go to the nominee.
He ends with this summary:
Faced with credible allegations of serious misconduct against him, Kavanaugh behaved in a fashion unacceptable in a justice, it seems preponderantly likely he was not candid with the Senate Judiciary Committee on important matters, and the risk of Ford’s allegations being closer to the truth than his denial of them is simply too high to place him on the Supreme Court.
We are in a political environment in which there are no rules, no norms anymore to violate. There is only power, and the individual judgments of individual senators—facing whatever political pressures they face, calculating political gain however they do it, and consulting their consciences to the extent they have them.
As much as I admire Kavanaugh, my conscience would not permit me to vote for him.
The other thing I mean by controversial is about the nuclear option. As I wrote elsewhere:
The Nuclear Option at work.
Before the Gorsuch nomination, Supreme Court nominations required 60% of the Senate to avoid a filibuster. Most major Senate decisions did, and this was one of the advantages of the Senate – a deliberative body that had to take the time to come to sufficient agreement to decide.
Changing that to allow a simple majority was called “the nuclear option” – an analogy to nuclear weapons, the most extreme option in warfare. As predicted, this made the process bloodier and more political. Each side wants to make sure it looks like it was the other side’s fault and get as much leverage as it can for the next round of elections.
We elect the government to govern, to work together to make sensible decisions. The Senate cannot be a battlefield and govern at the same time. No matter what politics you prefer or what you think of Kavanaugh.
I don’t think the nuclear option is the right way to pick lifetime Supreme Court justices. But even though Gorsuch was affirmed using the nuclear option, he was less controversial than Kavanaugh.