Bench Memos

Law & the Courts

What Kind of Supreme Court Justice Will Kavanaugh Be?

Judge Brett Kavanaugh, arrives to meet with Senator Rand Paul on Capitol Hill in Washington, July 24, 2018. (Aaron P. Bernstein/Reuters)

The next step in the evaluation process for Supreme Court nominee Brett Kavanaugh, the Judiciary Committee hearing, is underway. So what’s the state of confirmation play? Let’s do what judges do and apply rules or standards to the facts. And, just for fun, let’s use some standards that Senate Democrats and left-wing groups used when they supported past Democratic nominees.

On July 9, before President Donald Trump announced Kavanaugh’s nomination, Senate minority leader Chuck Schumer (D., N.Y.) said that the “American people deserve to know what kind of a justice President Trump’s nominee would be.” As Schumer counseled, we’ll make it our goal to determine the kind of Supreme Court justice Kavanaugh will be. To do this, common sense tells us to pay most attention to the parts of Kavanaugh’s work and writings that are most helpful in answering that question.

Kavanaugh’s professional career has several parts. After clerking for Supreme Court Justice Anthony Kennedy in 1994, Kavanaugh worked for a few years for a large law firm and four years as an associate independent counsel before joining the George W. Bush administration. He was an associate White House counsel from 2001 to 2003 and White House staff secretary from 2003 to 2006. Bush then appointed him to the U.S. Court of Appeals for the D.C. Circuit.

Common sense says that the parts of his record that did not involve legal work are the least relevant. That moves the staff-secretary position to the bottom of the list.

Schumer has already told us which part of Kavanaugh’s record is most relevant. When a nominee is already a judge, Schumer says, his or her judicial record is the best source of information to evaluate his nomination. In 2009, at the confirmation hearing for Supreme Court nominee Sonia Sotomayor, Schumer said that “everybody knows” that her judicial record “is the best way to get a sense of what your record will be on the bench in the future.” In fact, he said, other sources of information do “not even come close to analyzing the cases as to what kind of judge you will be.”

Senator Patrick Leahy (D., Vt.) who chaired the Judiciary Committee in 2009, agreed that Sotomayor’s “record on the federal bench” means that “we do not have to imagine what kind of a judge she will be because we see what kind of a judge she has been.”

Schumer also says that a nominee’s judicial record is so important that it diminishes the importance of the Judiciary Committee hearing itself. During the 2009 Sotomayor hearing, he said that “because we have such an extensive judicial record before us, I believe that these hearings will matter less.” Kavanaugh has served on the U.S. Court of Appeals for more than 500 days longer than Sotomayor had when she was nominated to the Supreme Court. He has written or joined nearly 700 opinions, which span more than 10,000 pages.

A third Schumer standard, also from the Sotomayor hearing, suggests what to look for in Kavanaugh’s judicial record. A judge, Schumer said, must follow the law even if it means ruling against what he called a “sympathetic plaintiff.” Sotomayor herself said that whether a party’s “position is sympathetic or not, I explain why the result is commanded by the law.” In other words, looking only at which party won or lost or which political interests might have been served is the wrong way to evaluate a judicial record.

Fourth, in July 1994, during the confirmation hearing for Supreme Court Justice Stephen Breyer, then–Judiciary Committee chairman Joe Biden (D., Del.) said that he valued “no recommendation more highly” than the American Bar Association’s rating. In 2006, Schumer said that the ABA rating is both “prized and important.” And in a March 2001 letter to President George W. Bush, Schumer and Leahy called the ABA’s rating “the gold standard by which judicial candidates are judged.”

At least three studies have found that ABA ratings are biased against Republican judicial nominees. But even with that, the ABA unanimously gave Kavanaugh its highest rating: well qualified. Just what does that mean? Here’s how the ABA describes it:

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.

The most important question is, “What kind of Supreme Court justice will Kavanaugh be?” The answer, say Democrats such as Schumer and Leahy, can best be found in his judicial record, which, they say, must be explored not to find sympathetic parties or clues about the judge’s personal empathy, but to see if the judge reaches results that the law requires. And, they say, the ABA’s rating — unanimous well qualified for Kavanaugh — is the “gold standard” for evaluating judicial nominees.

If those standards were worth using for Democratic nominees, they should also be applied today.

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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