Here’s the money graf in Benjamin Wittes’s latest more-in-sorrow-than-in-anger argument for nixing Judge Kavanaugh’s nomination:

What is important is the dissonance between the Kavanaugh of Thursday’s hearing and the judicial function. Can anyone seriously entertain the notion that a reasonable pro-choice woman would feel like her position could get a fair shake before a Justice Kavanaugh? Can anyone seriously entertain the notion that a reasonable Democrat, or a reasonable liberal of any kind, would after that performance consider him a fair arbiter in, say, a case about partisan gerrymandering, voter identification, or anything else with a strong partisan valence?

There’s a willful naïveté here that has long pervaded discussions of judicial confirmations. Recall then-judge Ruth Bader Ginsburg’s claim that Supreme Court nominees should give “no hints, no forecasts, no previews” about the decisions they would make if confirmed. The no-hints stance has long been justified on the ground that otherwise litigants would have reason to fear that they were not getting a fair shake from the justices — that some of them were biased against them.

But that justification is weak. Leave aside that we had a pretty good idea how the former lead litigator for the ACLU was going to rule in a lot of cases. Litigants before the Supreme Court in abortion cases know how Justice Ginsburg is going to vote because they’ve read her prior opinions on the subject. Nobody believes that she has an open mind on whether a restriction on abortion should be held constitutional. Similarly, nobody believes Justice Thomas has an open mind on the question.

Litigants have less of a sense of how a Justice Kavanaugh would vote in such a case, even after the hearing, than they do about how most of the other justices would.


If people really took seriously the idea that the justices have an obligation to make sure that legal activists on both sides of our political divides think they have a real shot at getting their next votes, then the majority of the Court would have to resign. But nobody does take it seriously.