The Left Slings Mud at Kavanaugh but Will It Stick?
Three things fair-minded senators need to consider
Editor’s note: This piece is coauthored by Elizabeth Slattery.
Judge Brett Kavanaugh — President Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy — is superbly qualified to sit on our nation’s highest court. His experience includes serving for 12 years as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, long regarded as the steppingstone to the Supreme Court.
In fact, any list of top jurists active today who will apply the Constitution as it was written and understood by the framers in judging cases would no doubt include Kavanaugh.
Yet this outstanding nominee is already suffering relentless — and wholly unfair — attacks by the left. As the mud flies, sober-minded senators with an appreciation of the Constitution and the rule of law should keep three things in mind as they fulfill their “advise and consent” role in considering his nomination.
First, Kavanaugh should be confirmed, sworn in and sitting on the Supreme Court by the first Monday in October, when the high court's 2018-2019 term officially begins.
In the term just ended, 19 cases were decided by a 5-4 vote. Justice Kennedy cast a tie-breaking vote in every one of those cases. That fifth vote was crucial in obtaining good decisions in vitally important cases like:
Trump v. Hawaii, which upheld President Trump’s travel restrictions on terrorist safe havens.
Janus v. AFSCME (the American of Federal, State, County & Municipal Employees), which threw out an Illinois law that forced government employees to pay dues to unions they refused to join.
NIFLA (the National Institute of Family and Life Advocates) v. Becerra , which found that a California law forcing pro-life pregnancy centers to advertise the state’s free abortion program violated the First Amendment.
Husted v. Philip Randolph Institute, which upheld the ability of state governments to ensure election integrity by cleaning up their voter rolls.
In the Supreme Court’s next term, a tie-breaking vote may be needed in cases like:
Gundy v. United States, examining Congress’s ability to delegate legislative authority to executive branch officials or administrative agencies.
Knick v. Township of Scott, Pennsylvania. This deals with a requirement that those seeking just compensation from the government when their property is taken must first exhaust all options in state court before applying to federal court.
Frank v. Gaos, which deals with courts issuing awards in class-action lawsuits that line the pockets of third-party advocacy groups, rather than the individuals who were actually injured.
Nielsen v. Preap, which is about the federal government’s right to detain illegal immigrants who have committed crimes.
There is more than enough time to confirm Kavanaugh before the Supreme Court resumes hearing cases Oct. 1. Taking into account the last 14 Supreme Court nominations, starting with Sandra Day O'Connor in 1981, the confirmation vote has occurred an average of 72 days after nomination. A confirmation vote in September would be par for the course.
Second, claims that it is somehow unfair or unprecedented to vote on a Supreme Court nomination during a midterm election year are flat-out wrong.
President Obama nominated Elena Kagan in May 2010 — a midterm election year. She was confirmed that August. Other justices confirmed during midterm election years include: Stephen Breyer (1994); David Souter (1990); Antonin Scalia (1986); William Rehnquist (as chief justice, 1986); Harry Blackmun (1970); Arthur Goldberg (1962); Byron White (1962); and Potter Stewart (1958).
Third, those who demand that Kavanaugh lay bare his personal views about issues like abortion, health care, the Russia investigation by Special Counsel Robert Mueller, and others are asking for something no judicial nominee can or should give.
Kavanaugh’s personal views on policy issues are irrelevant to his duty as a judge. He is not being appointed to a policy-making position. As Kavanaugh said in a 2016 decision, judges “are not authorized to rewrite statutory text simply because (they) think it should be updated.”
Justice Scalia once put it more colorfully, saying a law can be stupid but still be constitutional. The job of the Supreme Court is to determine whether a law — even a stupid one — is constitutional, not whether it is wise.
As for demands that Kavanaugh discuss his views on past high court decisions that could be revisited by the Supreme Court in the future, it would be unethical for any nominee to state how he or she might rule in a future case — and unfair to future litigants for a judge to predetermine the result.
It is precisely for these reasons that Justice Elena Kagan said in 2010 before her confirmation that it would be “inappropriate” for her to comment on the merits of past decisions of the Supreme Court other “than to say that it is settled law entitled to precedential weight.”
Justice Sonia Sotomayor said she could not answer such hypothetical questions during her confirmation hearing in 2009. Justice Stephen Breyer also refused to answer a similar question before he was confirmed regarding issues “likely to be the subject of litigation in front of the court.”
And this is why in 1993 Justice Ruth Bader Ginsburg reminded senators when she appeared for questioning after her nomination to the Supreme Court that she should be “judged as a judge, not as an advocate.” She said it “would be wrong” for her to “say or preview in this legislative chamber how” she would cast her vote “on questions the Supreme Court may be called upon to decide.”
The bottom line is this: There is no question that Brett Kavanaugh is extremely qualified to be the newest member of the Supreme Court. His long record on the bench shows him to be fair, impartial and faithful to the Constitution. No amount of character assassination, record distortion, or inappropriate questioning will change that.
The top priority of the Senate should be getting Kavanaugh confirmed by Oct. 1.
Republished from The Heritage Foundation.