Bench Memos

Law & the Courts

Brett Kavanaugh: Apocalypse Now

Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill, July 10, 2018. (Leah Millis/Reuters)

To hear some tell it, America faces an event so cataclysmic, so apocalyptic, that everything we know and cherish could fall into the Great Abyss, never to be seen again.

What could “threaten the lives of millions of Americans for decades to come” (former Virginia governor Terry McAuliffe), “pave the path to tyranny” (Oregon senator Jeff Merkley), be our “worst nightmare” (Connecticut senator Richard Blumenthal), portend the “destruction of the Constitution,” (California senator Kamala Harris), and literally determine the “future of America” (Massachusetts senator Elizabeth Warren)?

No, it’s not the last titanic battle between Godzilla and Megalodon, or an imminent epidemic of Bubonic Plague. These warnings, and more besides, are about the appointment of Brett Kavanaugh to the Supreme Court.

Really, I’m not kidding. That’s really what they are saying all this stuff about.

Who is this crazed judicial lunatic, this ne’er-do-well, this Brett Kavanaugh, who might wreak such destruction and mayhem across the land?

One way to answer that is to look at what Kavanaugh has said about how he approaches his job as a judge. In March 2015, for example, he gave a speech at the Catholic University of America in which he agreed with the comparison of a judge to an umpire who does not favor one team over the other. “To be an umpire as a judge,” Kavanaugh said, “means to follow the law and not to make or re-make the law — and to be impartial in how we go about doing that.”

Scary, right?

In that speech, Kavanaugh listed ten principles or attributes that describe the good judge. First, “a good judge . . . cannot act as a partisan.” Rather, “judges have to check any prior political allegiances at the door.”

Second, ”you also have to follow the established rules and the established principles.” Judges “should not make up the rules as they go along.” These rules “include stare decisis: we follow the cases that have been decided.”

Third, “you have to strive for consistency. . . . We must strive to be consistent in how we’re deciding cases, how we’re confronting issues, whether it be constitutional interpretation or statutory interpretation.”

Fourth, “you have to understand your proper role . . . to apply the rules and not to re-make the rules based on your own policy views.”

Fifth, “you have to possess some backbone.” This means that, as a judge, “you must, when appropriate, stand up to the political branches and say some action is unconstitutional or otherwise unlawful.”

As unsettling as this exercise is, we must press on.

Sixth, “you have to tune out the crowd noise.” That noise includes criticism in the media, law journals, and blogs. “One of the most important duties of a judge . . . is to stand up for the unpopular party who has the correct position on an issue of law in a particular case.”

Seventh, “you must have an open mind. You cannot decide cases based on preconceived notions. . . . And you must be willing to change your mind.”

Eighth, “it is critical to have the proper demeanor.”

Ninth, “especially on an appellate court, you need collegiality — to work well with and to learn from your colleagues.”

Tenth, “you have to be clear in explaining why you have made the decision you made.”

It takes only a little common sense to see that the best way to understand the kind of Supreme Court justice Kavanaugh will be is to understand the kind of appeals-court judge he has been.

As frightening as this is and, at the risk of traumatizing children who might be present, the quest to discover the real Judge Brett Kavanaugh must continue.

Thomas Jipping — Thomas Jipping is deputy director of the Meese Center for Legal and Judicial Studies and senior legal fellow at the Heritage Foundation.

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