Kavanaugh Is Nice, But Does That Matter?

Former clerks of Brett Kavanaugh gushed Aug. 9 about the Supreme Court nominee’s devotion to his family, his “unfailing” niceness, and his love of sports.

Such tidbits about high court candidates are important because justices don’t stop being themselves simply because they put on a black robe, Sarah Pitlyk, a former Kavanaugh clerk who is now at the conservative Thomas More Society.

Pitlyk was one of four former Kavanaugh clerks who spoke at an event put on by the conservative Heritage Foundation.

Others argue that the only thing that matters is how the judge will vote on issues important to Americans.

Chief Judge Merrick Garland, President Barack Obama’s unsuccessful nominee to the high court, is nice, a recent Slate article noted.

And “yet it mattered not one bit to anyone two years ago, since at that time, niceness was irrelevant,” it said.

Garland never got a confirmation hearing as Senate Republicans ran out the clock on Obama’s presidency in the hope of winning the 2016 presidential election and nominating a more conservative justice.

Civility and Evenhandedness
Several of the clerks highlighted Kavanaugh’s evenhandedness as particularly relevant.

He treats all litigants with civility and gives credit to their competing concerns, Pitlyk said.

She said she saw it first hand during her clerkship with Kavanaugh.

Pitlyk’s experience was “unprecedented” in the judge’s chambers at the time because she had recently given birth. Kavanaugh called her before her clerkship even started to brainstorm about ways that she could have a meaningful clerkship experience and still see her child everyday.

That kind of personal support for women—along with the fact that the justice has hired a majority of women as clerks—is relevant to how Kavanaugh might rule on women’s rights issues, Porter Wilkinson, a former clerk who is now at the Smithsonian Institute.

Reliable Indicator
Kavanaugh has also been praised for his focus on racial diversity in hiring clerks—an area that’s dominated by white males.

But New York State Sen. Gustavo Rivera (D) doesn’t think that will translate into favorable votes for minority groups.

A more reliable indicator is how the judge has voted on those issues in the past, Rivera told Bloomberg Law during an Aug. 9 media call.

Thomas A. Saenz, of the Mexican American Legal Defense and Educational Fund, laid out Kavanaugh’s “anti-immigrant and anti-worker” record during his dozen years on the U.S. Court of Appeals for the D.C. Circuit.

So while the judge may have good hiring practices, what’s important is how he’s voted in the past and how those votes will affect Americans for a generation, Rivera said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com