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Penn Law faculty perspectives on SCOTUS confirmation

October 08, 2018

On October 6, the Hon. Brett Kavanaugh was confirmed by the Senate and sworn in as an Associate Justice of the U.S. Supreme Court. Penn Law faculty provide their analyses of the confirmation and its implications. 


Allison Hoffman, Professor of Law

Over the next several years, this Supreme Court may decide critical questions about health law and policy — questions that pose some of the thorniest moral challenges of our times. The Court could determine the future of Americans’ control over medical care at the end of their lives and over their reproductive health. It could hear cases that have the potential to fundamentally reshape the Medicaid program for low-income Americans and to claw back the insurance coverage gains and protections of the Affordable Care Act.

The Kavanaugh confirmation process undermined the legitimacy of the Court in the mind of many Americans, making it a less credible arbiter of these toughest moral and legal questions.


Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

The process that led to the confirmation of Justice Brett Kavanaugh took partisan polarization to new extremes. As a result, it may well now seem nearly impossible to treat anyone’s views about his confirmation — whether positive or negative — as deriving from anything but partisanship.  

But it is possible to form views as a legal scholar and social scientist while remaining nonpartisan. I identify with no political party — and in fact in the past have been asked to testify before Congress by Senators on both sides of the aisle. After all, laws affect individuals of both parties and should be evaluated based on evidence and analysis, not their partisan pedigree. 

I thus never expected to comment publicly on the merits of a President’s nomination to the Supreme Court. But I did recently join other law professors in signing a critical letter that appeared in the New York Times concerning then-Judge Kavanaugh’s testimony.  

It was to be expected that a Senate confirmation process would become partisan. But I never expected a judicial nominee with such a distinguished record of public service to treat the Senate confirmation process with visible disrespect. Then-Judge Kavanaugh acted injudiciously by making misleading statements under oath, displaying contempt for duly elected representatives, and making inflammatory and highly partisan statements.

Even acknowledging the difficult nature of the inquiry (while also of course acknowledging the gravity of the underlying allegations), the type of behavior Kavanaugh displayed in front of the Senate Judiciary Committee would have been inappropriate for any citizen, or any lawyer, appearing before a legislative body or court of law. It was that much more clearly improper for a federal judge and nominee for a seat on the Supreme Court. 

The Kavanaugh confirmation process had many tragic elements to it. Among them now appears to be a serious risk of damage to the public legitimacy of the judiciary, exacerbated unfortunately by the then-nominee’s own unjustifiable conduct.


Commentary from Penn Law Professors in the Press 

Stephen Burbank
, David Berger Professor for the Administration of Justice, says Justice Kavanaugh’s partisan remarks indicate a “serious risk [to] the rule of law”: The New York Times 


“I think the Supreme Court will be a changed institution because of these politics and I don’t think it’s going to be for the better,” says Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy and Director of the Center for Ethics and the Rule of Law:  6ABC News 


Kermit Roosevelt, Professor of Law, commented on the pending case challenging Harvard’s affirmative action policy, saying, “if you have Kavanaugh on the Supreme Court replacing Kennedy, then yeah, I do think [Harvard will lose] … [n]ot because Harvard was doing anything wrong under current law, but because the Supreme Court is going to change its interpretation.”: The Daily Pennsylvanian