By John Lott, ,
Published August 28, 2018
Democrats are getting hysterical about the prospect of Judge Brett Kavanaugh being seated on the Supreme Court. Most of their hyperventilating is nonsense.
In a desperate attempt to block Kavanaugh’s confirmation by the Senate, the Democrats are making wild claims that abortion would be banned, people would be dying in the streets, and the president would gain immunity from investigation and prosecution if Kavanaugh joins the nation’s highest court.
Time for a reality check. Let’s all take a deep breath and look at the facts about the judge who President Trump has nominated to replace retiring Supreme Court Justice Anthony Kennedy.
Kavanaugh currently serves on the U.S. Circuit Court of Appeals for the District of Columbia. He’s not some right-wing extremist who would run wild – like the proverbial bull in the china shop – overturning legal precedents, despite what the Democrats claim.
Kavanaugh is dedicated to judging cases based on the evidence and dedicated to following the Constitution as it is written. He is a firm opponent of legislating from the bench to support his ideological views.
When he accepted President Trump’s nomination to the Supreme Court in televised remarks, Kavanaugh made this crystal clear, saying: “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Lower court judges are supposed to follow Supreme Court precedent, whether or not they personally agree with the decision. When judges ignore precedent, it is easy to infer that they are acting on their own political biases.
However, Kavanaugh has been a consistent follower of precedent while he has been on the D.C. Circuit Court. The appellate court is widely acknowledged to be the nation’s second highest court, just below the Supreme Court.
While the Supreme Court can overrule its own precedent, Kavanaugh has co-authored a hefty 942-page book on precedent, titled “Law of Judicial Precedent.” The book seeks to formerly describe rules when courts should follow precedent, and it makes clear that jettisoning precedent is not something that Kavanaugh takes lightly.
For those on the left who insist that Kavanaugh is dangerous because he supposedly won’t follow precedent when it comes to Roe v Wade – the 1973 Supreme Court decision that legalized abortion nationwide – it seems clear that his critics haven’t read the book he co-authored on precedent.
Kavanaugh argues that precedents are particularly binding when they have been around for a long time, have had large majorities on the court, and have been the subject of a number of Supreme Court decisions. All those points surely apply to Roe v. Wade.
In addition, during his confirmation hearing to the D.C. Circuit Court in 2006, Kavanaugh promised, “I would follow Roe v Wade faithfully and fully.”
Nor is Kavanaugh a radical when it comes to Second Amendment, which gives Americans the right to keep and bear arms. His one decision in this area mentioned the precedent set in the case of District of Columbia V. Heller, in which the Supreme Court ruled that the Second Amendment protects an individual’s right to possess firearms.
In his decision, Kavanaugh notes: “Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible.”
So what scares Democrats so much about Kavanaugh?
The Democrats fear the fact that Kavanaugh is very smart, very articulate and very persuasive. So while he isn’t going to roll back liberals past victories, it means that he will prevent their future ones by being able to convince other justices at times to come around to his viewpoint and side with him on some decisions.
And judges who can write powerfully worded decisions – as Kavanaugh has proven he can – are more likely to be cited in other judges’ decisions, which grants them even wider influence.
As a result, Kavanaugh would pose a threat to Democrats who believe the Constitution can be twisted like a pretzel to justify their belief in Big Government, with a heavy regulatory hand reigning supreme over individual constitutional rights.
Consequently, Democratic will do whatever they can to keep Kavanaugh off the high court.
Liberal law professors at Yale who know Kavanaugh well agree that he is a brilliant jurist. Here’s what just a few of them have to say:
In addition, Harvard Law School Professor Richard Lazarus said he admires Kavanaugh’s “skills as a jurist, and his legal acumen.”
Even Leah Litman, an assistant law professor from the University of California at Irvine who wrote an op-ed in The New York Times attacking Kavanaugh, called him “very smart.”
For conservative nominees, being smart is seen as much more of a negative for a judge’s Democratic opponents than being strongly against abortion. Being smart means the judge will be effective – and dangerous to the Big Government Democratic fans of activist judges.
Matthew Yglesias, co-founder of the left-leaning Vox.com, summed up Democrats’ mindset in a tweet July 10: “If we must have conservative justices, we should want them to be lazy and dim-witted.”
That description certainly does not fit Kavanaugh.
This is nothing new. When current Chief Justice John Roberts was being considered for the Supreme Court in 2005, Sen. Chuck Schumer, D-N.Y. (now the minority leader) said: “But being brilliant and accomplished is not the number one criteria for elevation to the Supreme Court. There are many who would use their considerable talents and legal acumen to set America back.”
Fear that a nominee will influence other judges has long driven confirmations, and political opponents have been very good at judging which nominees will be the most influential.
In tracking federal circuit court judicial appointments over the past four decades, my research has found that a federal judge whose opinions are cited 20 percent more often than his or her peers faced roughly a 60 percent longer confirmation process.
I also found that graduates of one of U.S. News & World Report’s Top 10 law schools who also served on their schools’ law review had a 30 percent lower confirmation rate than their peers who neither went to top law schools nor had the distinction of being on a law review.
In Kavanaugh’s case, he not only excelled at No. 1-ranked Yale Law School but he has been invited to teach at Harvard, Yale and Georgetown universities.
Since the unsuccessful Republican effort to confirm President Ronald Reagan’s nominee Robert Bork to the Supreme Court in 1987, abortion has been a central issue in confirmations. But Democrats haven’t cared about this issue when the nominee wasn’t viewed as being particularly smart.
Look at how differently Democrats reacted to President George W. Bush’s 2005 nomination of Harriet Miers to the Supreme Court. Despite her once vowing to support a ban on abortion, many Democratic senators had only good things to say about her.
It was Republicans who opposed Miers because they were concerned she wasn’t smart enough. She received her law degree from Southern Methodist University, No. 48 in the U.S. News rankings. She lacked the sterling legal career that most nominees have. Her name was ultimately withdrawn from consideration.
When one party controls both the presidency and the Senate – as Republicans do now – my prediction is that we will see smarter judges and lawyers being nominated for the Supreme Court, appellate courts and district courts. This is especially true now that only a simple majority vote in the Senate is needed to confirm a judges and Supreme Court justices.
Trump-appointed Supreme Court Justice Neil Gorsuch and nominee Brett Kavanaugh are just the beginning of a new wave of smart judges, the likes of which we haven’t often seen nominated for at least a couple of decades. Our nation will be better off with the best legal minds in America judging cases in our court system.