09.10.2018 0

Brett Kavanaugh deserves 95 votes, but we’ll settle for the fact that a constitutionalist is getting confirmed

By Donald Wilfong

With the conclusion of the confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh, one thing remains clear. Judge Brett Kavanaugh will make an excellent Associate Justice to sit on the nation’s highest court. There is no doubt in my mind that as soon as Judge Kavanaugh dons the black robes he will check any political ideology at the door. Judge Kavanaugh, as he always has done, will read the law, at face value, listen to both sides of the argument, and draw his own independent conclusions on how the facts of each case fits within the framework of the law.

Judge Kavanaugh understands the simple truth that most people in our nation has forgotten, The Supreme Court of The United States does not make the law. Instead, justices are supposed to merely read what is already written and interpret the written text to reach decisions on cases.

In his opening statement, Kavanaugh stated, “My 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 the Constitution as written, informed by history and tradition and precedent. In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: ‘the rules of legal interpretation are rules of common sense.’ A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.”

The profession of judgeship is not an easy one to preform, one must be totally impartial by possessing the ability to compartmentalize any political ideologies and set all personal feelings aside. Over three days of non-stop interruptions and grilling from 21 senators, Judge Kavanaugh has proven he can exhibit and has exhibited these abilities over the past three days and over the entirety of his twelve-year career.

Unfortunately, even though Judge Kavanaugh is extremely qualified, he will be lucky to receive 55 votes in the Senate. Why? Because times have changed. Senators now are expected to vote down party lines and would not dare to vote for another President’s Supreme Court Nominee.

Judge Kavanaugh has served 12 years as a judge and has decided more than three hundred cases. These two qualifications alone are enough to push him well past any doubt that he is qualified. Today’s times are different, they are undoubtedly decisive, and the gap of division competes in size with the Grand Canyon. But, it didn’t use to be this way.

The history of the Senate is one which looks at nominees’ records to see if they are qualified to take on the highest court in the land. A respectable process in which committee members would ask the nominee about their qualifications and any clarifying questions about past opinions. They would examine the full body of work and make a vote on the qualifications not the orientation. Even Justice Ginsburg received 96 votes, and she was the general counsel of the ACLU.

The way the process used to be, was designed to protect the judicial branch from politics and keep the branch independent. That, no matter their political ideology, merit and qualifications should reign supreme in the Senate when examining a potential Supreme Court Justice.

On the other hand, that has not always produced the best outcomes with rights being read into the Constitution; the nation would have been far better off with a view that constitutionalists, and only constitutionalists like Kavanaugh who interpret the law as written are qualified to serve.

In any other time period, his temperament, patience, decency, and impartibility would carry Kavanaugh to a 95 plus confirmation vote.

When the dust settles one thing will become clear, Judge Kavanaugh deserves more than anyone else to become the newest Associate Justice of the Supreme Court. When the authors of the Constitution created the Judicial Branch and the concept of judicial review, they envisioned justices identical to Judge Kavanaugh to be a part of the highest court in the land. To in the words of Marbury v. Madison, “to say what the law is.” Which is more important than how many votes he gets.

Donald Wilfong is the development officer at Americans for Limited Government.

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