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Kavanaugh’s pro-democracy, let-the-people-govern-themselves vision

The Washington Post logoThe Washington Post 7/10/2018 Kenneth W. Starr

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Kenneth W. Starr is a former U.S. solicitor general and federal judge.

Judge Brett M. Kavanaugh’s nomination to the nation’s highest court comes at a watershed cultural moment in America’s history as a constitutional democracy. Life in the nation’s capital these days all too frequently turns into a shouting match. Seemingly gone are the days when political archrivals — think President Ronald Reagan and House Speaker Tip O’Neill — could wrestle over policy by day and then enjoy a convivial drink together once the sun had set.

In comes Kavanaugh. Quite apart from his formidable legal talents and work ethic, Kavanaugh also possesses a basic sense of decency and goodwill that an increasingly impoverished public discourse sorely needs. He is willing to engage, respectfully, with those who hold contrary views even as he remains steadfast to the traditions and principles that animate his life and work. He is, in a word, judicious.

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I came into Kavanaugh’s orbit 25 years ago when he was leaving his Supreme Court clerkship with Justice Anthony M. Kennedy, whose retirement has created the opening that Kavanaugh has been nominated to fill.

I was in private law practice, helping to recruit Kavanaugh for the law firm Kirkland & Ellis. His sterling credentials included no fewer than three clerkships, and the competition to snag him was fierce.

Kirkland & Ellis won the Kavanaugh recruiting derby, but about that time I unexpectedly found myself with a new responsibility — as independent counsel in the far-flung Whitewater investigation involving Bill and Hillary Clinton — and I wanted him on the team. He could have chosen to stick with his plan to start a lucrative career in private law practice, but instead he answered the call of public service.

Kavanaugh immediately established himself in the independent counsel’s office as a capable, hard-working professional, exercising judgment well beyond his years. He would listen carefully, assemble and assess the facts, and then make his judgment. Leading our office’s examination into the tragic death of Vince Foster, Kavanaugh guided forensic agents and investigators, and he wrote the draft definitive report that answered conclusively every reasonable question about the cause of Foster’s death — suicide at the site where his body was found in Fort Marcy Park in Northern Virginia.

In the most controversial phase of the Whitewater investigation, Kavanaugh urged restraint in our office’s referral to Congress resulting in President Bill Clinton’s impeachment. Regarding details of the president’s sexual relationship with Monica Lewinsky, Kavanaugh counseled offering less description, rather than more. In his view, the dignity of the historic process soon to unfold on Capitol Hill would inevitably be eroded by including explicit details of the president’s trysts. His advice was thoughtfully reasoned and carefully measured, but he understood when our office chose not to follow it.

Those qualities of judicious reason and care have been amply on display over the 12 years of Kavanaugh’s service on the U.S. Court of Appeals for the District of Columbia Circuit, sometimes known as the nation’s second-highest court. During that time, Kavanaugh has shown that he stands in a long tradition of jurists — that of Holmes, Brandeis, Cardozo, Frankfurter, Harlan and Stewart — who deeply respect both the democratic process and the structural principles undergirding our constitutional republic, while honoring the elaborately enumerated protections of “We the People” enshrined in the Bill of Rights.

Kavanaugh is not quick to overturn judgments reached through the legislative process, no matter how untidy. His pro-democracy, let-the-people-govern-themselves vision has been evident in his incisive questioning of the modern-day judicial emphasis on courthouse deference to administrative agencies.

If Kavanaugh moves a few blocks up to new chambers on Capitol Hill this fall, the nation will see exactly what those of us who’ve worked with him over three decades have known all along. He’s the classic good person, one who plays respectfully and amiably in the high-stakes sandbox of Washington.

If confirmed by the Senate, Kavanaugh will have an opportunity to expand his teaching beyond the university classrooms of Georgetown, Harvard and Yale, to a raucous nation itself. Through his service and his example both in and out of the courtroom, Kavanaugh offers an invaluable lesson in the virtues of grace and civility toward all.

Read more:

Ronald A. Klain: Kavanaugh faces a tougher path to confirmation than Gorsuch. Here’s why.

The Post’s View: Brett Kavanaugh could drastically shift the court to the right. The Senate should take care.

Dana Milbank: Yes, abortion is on Kavanaugh’s docket. But here’s what’s first.

Hugh Hewitt: Brett Kavanaugh is ‘John Roberts 2.0’

Eugene Robinson: The two most consequential facts about Brett Kavanaugh


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