Bench Memos

Law & the Courts

Public Citizen’s Kavanaugh Analysis Doesn’t Meet the Schumer Standard

Supreme Court nominee Judge Brett Kavanaugh listens at his Senate Judiciary Committee confirmation hearing on Capitol Hill, September 4, 2018. (Joshua Roberts/Reuters)

Senate Democrats and some of their far-left interest-group allies don’t seem to be on the same page about how to evaluate Supreme Court nominees.

In 2009, during the Judiciary Committee hearing for Supreme Court nominee Sonia Sotomayor, Senator Chuck Schumer (D., N.Y.) rejected the idea of evaluating a nominee’s judicial record by looking at which parties win or lose or which political interests are advanced. In fact, he said that judges must decide cases based on what the law requires, not on their personal empathy, even if it means ruling against a “sympathetic litigant.”

The oath of judicial office required by federal law reflects the same idea, obligating a judge to “administer justice without respect to persons” and to discharge judicial duties “impartially.” Kavanaugh took this oath when he joined the U.S. Court of Appeals in 2006.

The folks at Public Citizen, however, have just released an analysis of Kavanaugh’s opinions on the U.S. Court of Appeals that does not meet the Schumer Standard.

Public Citizen says that they wanted to “avoid concerns about cherry-picking.” That’s what they say, but in fact the group examined only “split decisions,” ignoring the unanimous ones. That cut out about one-third of Kavanaugh’s opinions. Among those split decisions, Public Citizen considered what it calls “regulatory and business cases.”

The bottom line is that this “analysis of Judge Kavanaugh’s opinions” considered fewer than 20 percent of his opinions. But Public Citizen was not finished picking the cherries. For some reason, the group’s definition of “regulatory and business cases” included cases involving “police abuse and human rights violations.” What?

Okay, so let’s get past the problem of examining only a small and selectively organized portion of Kavanaugh’s opinions. What did Public Citizen do with the cherries it picked? At her July 1993 confirmation hearing, Supreme Court Justice Ruth Bader Ginsburg — who served on the same court as Kavanaugh does now — offered the following guidance:

Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.

Properly analyzing a judge’s opinions, therefore, requires examining the facts, the law, and the arguments in each case. Unfortunately, Public Citizen not only ignored all three but also emphasized the fact that it did so. The group “made no assessment of the merits of the underlying issues” but “tallied only whether Judge Kavanaugh sided for or against a corporation or public interest group suing an agency.”

In other words, by ignoring “the specific of the particular case,” Public Citizen did exactly what Ginsburg claimed shows “disdain for the entire judicial process.” By excluding what the law requires, Public Citizen did exactly what Schumer rejected as a means of understanding the record of a U.S. Court of Appeals judge.

According to Public Citizen, a calculator is the only tool necessary for evaluating an appellate judge’s entire body of work. Instead, they should listen to Judge Harry T. Edwards, one of Kavanaugh’s colleagues on the D.C. Circuit. Writing about their court, Edwards offered this counsel: “Giving the public a distorted views of judges’ work is bad for the judiciary and the rule of law.”

It sure is.

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

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