When Brett Kavanaugh’s nomination to the Supreme Court was announced, on July 9th, his alma mater, Yale Law School, released a statement quoting several liberal faculty members’ praise of his intellect, accomplishments, and character. This move was excoriated in an open letter, signed by hundreds of the school’s students, alumni, and teachers, which asked, “Is there nothing more important to Yale Law School than its proximity to power and prestige?” The letter called Kavanaugh’s nomination “an emergency—for democratic life, for our safety and freedom, for the future of our country” and exhorted the school to have “moral courage” and withhold its support. “Perhaps Judge Kavanaugh will be less likely to hire your favorite students,” the letter said. “But people will die if he is confirmed.”

For the past two months, liberal activists and politicians have continued to fervently oppose the nomination. Hundreds of protest events and outreach campaigns have expressed antipathy toward the nominee. In last week’s confirmation hearings, with the knowledge that they didn’t have the votes to win, Democrats on the Senate Judiciary Committee attempted tough showmanship in questioning Kavanaugh, but they failed to satisfy the base. Last week, thirteen progressive organizations signed a letter to the Democratic Minority Leader, Chuck Schumer, complaining of his failure to defeat the nomination and claiming that “Kavanaugh is an extremist who will help institutionalize Trump’s hate for a generation.”

The urgency of opposition stems from serious concerns. If Kavanaugh replaces Justice Anthony Kennedy, who voted with liberals in key decisions upholding abortion rights, gay rights, and affirmative action, those outcomes could well change. Opponents of Kavanaugh’s nomination are especially concerned about abortion rights. In the past year, Kavanaugh, serving as a judge on the D.C. Circuit Court of Appeals, praised Justice William Rehnquist’s Roe v. Wade dissent in a speech, and wrote a dissenting opinion finding it reasonable for the government to block abortion for a minor in immigration detention. The nomination, Kavanaugh’s opponents recognize, presents the Senate with a political and moral choice that will directly affect the lives of the most vulnerable.

But the conflict over Kavanaugh is not just between liberals and conservatives but also between those emphasizing norms of professional excellence and nonpartisanship and those stressing policy outcomes. The Supreme Court attorney Lisa Blatt, a self-described “liberal Democrat and an unapologetic defender of a woman’s right to choose,” introduced Kavanaugh at the hearings, testifying that he is “unquestionably qualified by his extraordinary intellect, experience, and temperament.” She reminded fellow-liberals of the Senate’s confirmation of Ruth Bader Ginsburg, by a vote of ninety-six to three, in 1993, even though many Republican senators disagreed with Ginsburg’s legal views. In a world where professionalism comes first, Republicans and Democrats would vote to confirm a highly qualified conservative nominee like Kavanaugh—or a highly qualified liberal nominee like Ginsburg—while knowing that he or she may not come out the way they want on important issues. But we have moved far from that world.

Democrats have not demonstrated the “complete opposition” to Kavanaugh that the progressive groups demanded, but opponents of the nominee, including Schumer, Kirsten Gillibrand, Richard Blumenthal, and Kamala Harris, have tried to portray Kavanaugh as “out of the mainstream,” a phrase that helped doom the nomination of Robert Bork, in 1987. The same phrase was used by conservatives to paint the nominees Sonia Sotomayor and Elena Kagan (and Ginsburg before them) as too liberal, which suggests that “out of the mainstream” simply means “I disagree.” Kavanaugh has not shown himself to be more conservative than the late Justice Antonin Scalia, or Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. In fact, Kavanaugh’s influence as a judge on the D.C. Circuit has helped to define the legal mainstream, which has moved right in recent decades. (Jeffrey Toobin has described the rise of the Federalist Society, the beating heart of the legal conservative movement, and its influence in shaping the contemporary judiciary.) Much of the controversy over Kavanaugh has centered on his views of Roe. During the hearing, Kavanaugh said that the case was “settled as precedent of the Supreme Court,” but, in a 2003 e-mail, sent while working in the White House, he wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” Liberals may strongly object to this suggestion, but it is not “out of the mainstream”: it is common for legal conservatives to think that Roe should be overturned.

If public discourse were fully honest, it would acknowledge that over the decades it has hardly been unusual for liberal legal thinkers to question the legal basis for Roe. Even abortion-rights supporters have recognized that the Court’s inference of a right to privacy from the phrase “due process” in the Fourteenth Amendment, to strike down anti-abortion laws, was controversial, because it risked being an effectively unbounded way for judges to contravene acts resulting from democratic processes. At the time of the decision, in 1973, the liberal constitutional scholar John Hart Ely described it as “a very bad decision . . . because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Ginsburg has also expressed some ambivalence about Roe: she wrote in 1985 that the case “ventured too far in the change it ordered,” and criticized the decision as recently as this year, saying that, had the court proceeded more gradually, we would not have seen as many subsequent limitations of abortion rights. Our inability to have a public conversation about the merits and effects of the decision, for fear of undermining abortion rights, is a symptom of the partisanship that also makes it impossible for Kavanaugh—or any judicial nominee—to candidly explore the nuances of issues or to reveal his views in a confirmation hearing. Democrats have objected to Kavanaugh’s evasiveness, but in the hearings he uttered the same formulas as past successful nominees, largely refusing to engage with questions about abortion, same-sex marriage, health care, affirmative action, and executive power, beyond stating tautologically that Supreme Court precedent is the law of the land.

Democrats have objected to Kavanaugh’s evasiveness, but in the hearings he uttered the same formulas as past successful nominees. Photograph by Mark Peterson / Redux for The New Yorker

Some liberals have raised concerns that, if confirmed, Kavanaugh will enable President Trump’s abuse of power. In the event of Trump being subpoenaed or indicted, the issue of Presidential immunity could end up in the Supreme Court. Kavanaugh’s early career was defined by his work on the independent counsel Kenneth Starr’s investigation of President Bill Clinton, which found that Clinton had committed obstruction of justice and perjury. In that job, Kavanaugh apparently thought that a President could be investigated while in office, but not criminally indicted, a view shared by the Department of Justice. In 2009, Kavanaugh wrote that he had been wrong to think that a President could focus on his duties while being sued or criminally investigated; he proposed that Congress provide for deferral of those measures until the President has left office, and also pointed to the appropriateness of impeachment for a “bad-behaving or law-breaking President.” What to make of this change? The “professional excellence” wing might take this as an encouraging sign of Kavanaugh’s willingness to rethink and refine his views, even to see his own past thinking as “a mistake.” But the “policy outcomes” wing will only see worrisome evidence of his permissiveness toward the executive, which could help Trump evade consequences for wrongdoing. At the hearings, Kavanaugh disavowed any suggestion of immunity for the President, and there is little reason not to take him at his word on that issue. (He also called United States v. Nixon, which unanimously upheld the subpoena that forced President Nixon to turn over the Watergate tapes and led to his resignation, “one of the greatest moments in American judicial history,” though he had suggested, at a roundtable nineteen years ago, that “maybe Nixon was wrongly decided.”)