The Judiciary Committee hearing for Supreme Court nominee Brett Kavanaugh continues, but let’s note three things that Kavanaugh said in his opening statement to the committee.
First, he urged everyone not to read what others have said about his judicial opinions, but to “read the opinions” for themselves. Should he really have had to say that? After all, Senate Democrats such as Chuck Schumer (D-N.Y.) and Patrick Leahy (D-Vt.) have repeatedly said that the best way to determine the kind of justice a nominee will be is to evaluate the kind of judge he or she has been.
In 12 years as a federal appellate judge, Kavanaugh handled approximately 2,300 cases and wrote or joined nearly 700 opinions. Think what you want about them, conclude what you will about him, but just take them as they are and actually read them. Not the Cliff’s Notes, not the syllabus, but the opinions themselves.
Second, he said that his “judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret and the Constitution as written, informed by history and tradition and precedent.”
He’s not using cryptic, mushy, could-mean-anything pablum. After nearly four decades of active debate about how judges should go about judging, everyone knows what that means — and, perhaps more importantly, what it doesn’t.
Third, he said that a “good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy ... I don’t decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.”
Schumer said on July 9 that the “American people deserve to know what kind of a justice President Trump’s nominee will be.” That’s the answer, and it’s also the reason why Kavanaugh will not discuss his personal views on issues or other matters that could come before him on the Supreme Court.
Judiciary Committee Democrats will demand to know those views. They will demand that Kavanaugh make what Schumer has called “affirmative commitments” on different issues. They will demand that Kavanaugh be pro-this or anti-that. In other words, since they want judges who decide cases based on personal or policy preferences rather than the law, they will do everything they can to determine what Kavanaugh’s preferences are.
He won’t take the bait, and he won’t give them what they want. If he did, if Kavanaugh were to discuss his own preferences and make such commitments, the Senate should not confirm his nomination and he should not be on the Supreme Court.
Don’t just take my word for it. In 1955, President Dwight D. Eisenhower nominated John Marshall Harlan to the Supreme Court. Harlan was then a judge on the U.S. Court of Appeals for the Second Circuit. At his Judiciary Committee hearing, Harlan said:
I take it not only would the committee agree with me that it would be inappropriate for me to comment upon cases that may come before me, and to express my views on issues that may come before me, but that if I undertook to do so that would seem to me to constitute the gravest kind of question as to whether I was qualified to sit on that great Court.
In July 1993, at her confirmation hearing, Justice Ruth Bader Ginsburg explained why she would not address how she will address issues that will come before the Supreme Court. “A judge sworn to decide impartially,” she said, “can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
In 2009, President Obama appointed another Second Circuit judge to the Supreme Court. Last year, in a speech at Arizona State University, Justice Sonia Sotomayor discussed her confirmation hearing. “What you want is for us to tell you how as a judicial nominee we’re going to rule on the important issues you find vexing,” she said. “Any self-respecting judge who comes in with an agenda that would permit that judge to tell you how they will vote is the kind of person you don’t want as a judge.”
Kavanaugh will follow in this tradition for a simple reason: he’s a judge. Judge Harlan in 1955, Judge Ginsburg in 1993, Judge Sotomayor in 2009, and Judge Kavanaugh today know that the integrity of their role depends on their impartiality. And nothing could undermine that impartiality more quickly or more thoroughly than giving, as Ginsburg put it, “hints … forecasts … [or] previews” — under oath to a bunch of politicians, no less — about how they would decide they have yet to consider.
This piece originally appeared in The Hill on 9/6/18