If Kavanaugh Is Nonpartisan, Why Did He Choose Fox?

(The Bloomberg View) -- It seems a lifetime ago, but it’s only been a few weeks since Judge Brett M. Kavanaugh appeared before the Senate Judiciary Committee. If his remarks had an overarching message, it was this: The American judiciary is a sacred institution, far above the reach of politics and party. Judge Kavanaugh pledged to honor that idea.

The point was hammered home in his opening statement. “As Justice Kennedy showed us,” Kavanaugh said of his hero and mentor, Anthony Kennedy, “a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic. In our independent judiciary, the Supreme Court is the last line of defense for the separation of powers, and the rights and liberties guaranteed by the Constitution.” The court, he concluded, “must never be viewed as a partisan institution.”

There were a few reasons to question the sincerity of his statement. Unlike most recent nominees to the court, Kavanaugh had lived a visible and active political life, working for Ken Starr on the Clinton impeachment, helping George W. Bush on the 2000 Florida recount, and then serving in the Bush administration as staff secretary — the person who controls the flow of information to the president.

Nevertheless, there was also reason to hope that a life on the bench had changed him. Kavanaugh had served ably on the U.S. Court of Appeals for the D.C. Circuit, alongside Judge Merrick Garland, and fights hadn’t broken out. His judicial record, though conservative, was far from radical and did nothing to disqualify him from sitting on the Supreme Court. That record, plus his testimony, seemed enough to assuage doubts about the taint of partisanship. 

Until Monday night. That is when Judge Kavanaugh made a conscious choice that indicated that he is perhaps more predisposed to taking sides than he has let on: He chose Fox News as the venue to defend himself from troubling allegations of sexual impropriety.  (Doubts springing from those claims will be addressed in Senate hearings on Thursday.)

This is not to criticize Fox. Fox is what it is: a popular, legitimate, conservative-leaning network, the professed favorite of President Donald Trump. And this is not to criticize the interviewer, Martha MacCallum. She did not flinch from asking Kavanaugh solid questions about the accusations directed at him.

This is, however, a criticism of Brett Kavanaugh. “A good judge must be an umpire,” he told Congress. “A neutral and impartial arbiter.” In choosing Fox, Kavanaugh picked a team, and opted for home-field advantage. A candidate committed to speaking to and serving an entire nation — Republican, Democrat and beyond — would have made his stand somewhere else. A nonpartisan venue such as PBS or C-SPAN, for example, would have been a good place to start.

Editorials are written by the Bloomberg View editorial board.

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