Does Brett Kavanaugh Agree With Bush v. Gore?

If he does, he can’t be trusted to distinguish between partisan demand and legal principle.

Supreme Court nominee Brett Kavanaugh
Lucas Jackson / Reuters

On November 22, 2000, while George W. Bush’s and Al Gore’s lawyers battled over disputed votes in Florida courts, three of Justice Ruth Bader Ginsburg’s four law clerks went home for Thanksgiving. I was one of them. Two days later, when her Court took the case, we were still at home. The decision stunned us.

The disputed 2000 election was a national trauma. Its conclusion, the Bush v. Gore ruling, is a repressed memory. The decision declared its reasoning “limited to the present circumstances,” and the justices have been good to their word. Election cases come and go, but only Justice Clarence Thomas, writing solely for himself, has cited the 2000 case.

Democrats have also moved on. Like Chief Justice John Roberts, President Donald Trump’s Supreme Court nominee Brett Kavanaugh worked on Bush’s side. Although little is known of what Kavanaugh did, his critics haven’t harped on it. Nobody wants to sound like a sore loser.

Now that Trump has been implicated in a violation of federal election laws, Democratic leaders have argued for delaying hearings on a nominee who could be asked to hear Trump’s case. Senate Republicans have rejected that argument, as have some red-state Democrats. The conceit is that the Court and its confirmation processes still stand outside ordinary politics. The Kavanaugh hearings remain scheduled to begin on September 4.

Anyone undecided on Kavanaugh ought to take a harder look at the last time the Supreme Court addressed the fate of the presidency. Bush v. Gore did not involve justices settling the future of the man who had nominated them. Even so, it did not go well. Kavanaugh’s role in that case does him no credit, and he should be asked about it in his hearings.

The fact that a lawyer would advance a legal position congenial to his client and his party is neither a surprise nor a scandal. Normally, though, as part of their craft, judges unfold their views gradually and coherently, in ways that honor the law’s norms around consistency and precedent. In Bush v. Gore, that did not happen. At the urging of campaign lawyers like Kavanaugh, five conservative judges rejected bedrock conservative legal principles to secure the presidency for a Republican. That was a surprise, and it should remain a scandal.

There was no reason for the Court to get involved in the recount. The Constitution gives the power over presidential vote counts to each state, as directed by its legislature. Florida’s legislature had written recount laws. Bush and Gore disputed what they meant. As happens every day, a state’s courts were interpreting the state’s laws to resolve a dispute. The Supreme Court plays no role in such cases.

The Court intervened on the theory that the Florida court had usurped the role of the state legislature. This was an extraordinary foray into a state’s governmental processes. The most recent precedents came from the era of Jim Crow, when Southern state courts twisted their own laws to railroad African Americans, implicating bedrock rights to equality and due process. There was nothing comparable here. Most astonishing, the intervention came from conservatives who typically defended state sovereignty.

The groundlessness of the Court’s initial position was betrayed by its final opinion, which offered an entirely different rationale. The Court declared that Florida violated the Constitution’s guarantee of equal protection by counting votes in different ways in different counties, and that the only remedy was to stop the recount altogether. But states have often employed disparate vote-counting procedures. Here, “originalists” such as Justice Antonin Scalia declared a never-before-seen right to fixed recount standards. Where prior applications of equal protection to voting had protected the power of each person’s vote, the majority here stopped the vote count altogether, declaring that Florida’s courts had run out of time (due to the Court’s intervention in the first place).

When Bush v. Gore was decided, a handful of brave conservatives denounced the ruling’s opportunism. Had that reaction been more widespread, the backlash might have taught the Court a lesson in modesty. Work on the case by Washington lawyers like Kavanaugh might have become the dubious distinction it deserves to be. But conservatives closed ranks and Bush won reelection, fair and square.

Since Roberts’s ascension to chief justice, the Court has reshaped laws affecting partisan power. Some of the Court’s key rulings—for example, unfettering corporate speech in 2010, or shackling unions this June—bear a real resemblance to Bush v. Gore: radical in law, Republican in politics. The radicalism is evident in those two cases especially. They overruled decisions that had been joined by Richard Nixon’s former legal adviser William H. Rehnquist, who was nobody’s idea of a liberal. Even so, these more recent Roberts Court rulings are better reasoned and less brazen than Bush v. Gore. They emerge from a libertarian view of the Constitution that is far-reaching, but at least minimally coherent. That coherence is just what was missing from Bush v. Gore.

At his hearings, Kavanaugh will seek to deflect questions about many cases by saying they could come into question again if he is confirmed. But, as a meaningful precedent, the Court is done with Bush v. Gore. There is nothing to stop Kavanaugh from answering: What arguments did he advance in that case? Is he proud of his work? Does he agree with the opinion?

A nation with two political parties deserves a high court above them both. For Kavanaugh to acknowledge Bush v. Gore’s lack of principle would be a refreshing expression of humility, both personal and judicial. By contrast, if Kavanaugh can’t distinguish political demand and legal principle in this nearly unmentionable case from our past, it’s a bad bet he’ll do so in the future—in Trump’s case, or any other on which our future depends.