On July 9, shortly after President Trump announced the nomination of Judge Brett Kavanaugh to the Supreme Court, Senate Minority Leader Charles Schumer (D-N.Y.) said that “the American people deserve to know what kind of a justice” Kavanaugh will be. That is what the entire Senate confirmation process should be about.
Every nominee has a professional record, a unique compilation of his or her activities and accomplishments. Nineteen of the 27 justices appointed since 1950, for example, were judges; three were serving in the Justice Department; two were in private practice; one was a state governor; and one was secretary of Labor.
Kavanaugh’s legal career has five parts: private legal practice, associate independent counsel, associate counsel to the president, White House staff secretary, and U.S. Court of Appeals judge.
Kavanaugh hasn’t applied to be director of an executive branch agency. He isn’t running for Congress. He’s been nominated to be a Supreme Court justice. It’s pretty obvious which parts of his record are most relevant to this nomination. After all, he has been a judge longer than the rest of his career combined.
In 2009, during the confirmation hearing for Supreme Court Justice Sonia Sotomayor, Schumer told her that “your record on the bench” is “the best way to get a sense of what your record will be on the bench in the future.” There’s no reason to have a double-standard today.
Kavanaugh has served on the U.S. Court of Appeals more than 500 days longer than Sotomayor had when she was appointed to the Supreme Court. He has written 307 majority or separate opinions and joined 391 others. Those published opinions, which comprise 8,491 pages, have been publicly available all along; no document requests are needed. Kavanaugh also participated in more than 1,600 cases with unpublished decisions in which he did not write opinions.
So his judicial record — what Schumer says is “the best” and “most important” way to evaluate a nominee — includes more than 2,300 cases.
In addition, Kavanaugh included 17,000 pages of material with his Senate Judiciary Committee questionnaire. The George W. Bush Library has provided 125,000 pages of material, with more to come, related to Kavanaugh’s service in the White House Counsel’s Office from 2001 to 2003, the second most relevant segment of his legal career.
Kavanaugh’s hearing will be an opportunity to explore this record.
One important issue to explore at the hearing is whether, in each case, a judge must reach whatever result the law requires or, instead, may be guided by his or her own sympathies or purposes.
Schumer addressed this issue during Sotomayor’s hearing, saying that she “hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants.” Later in the hearing, he said, “Even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law.”
Chief Justice John Roberts addressed the same issue at his 2005 confirmation hearing after being asked if he would be on the side of the so-called “little guy.” He said that, “If the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then, the big guy is going to win, because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that I will look out for particular interests, [that] I’ll be on the side of particular interests.”
In contrast, Kavanaugh’s opponents believe that judges should take sides and ensure that certain litigants, representing certain interests, prevail. The debate over his nomination is really a debate over which kind of judge should be appointed.
Kavanaugh’s judicial record in the past, and his hearing in the future, can help clarify whether he believes that his decisions should be driven by the law or by litigants, interests, and agendas. In other words, they can help us determine what kind of justice Kavanaugh will be.
This piece originally appeared in the Hill on 8/10/18