OPINION: SCOTUS 101: A Primer for the Era of Hostility

Isaac Martin, Contributor

“The way it was was right. The way it is is wrong.”

Ruth Bader Ginsburg on Supreme Court (SCOTUS) confirmations

The Notorious RBG has perhaps never uttered a truer nor more ironic statement in all her days on the court. The hullabaloo and hyperbole surrounding Judge Brett Kavanaugh’s hearings have reached mythic proportions. A sitting senator likening himself to a Thracian protagonist. The same senator indignantly insisting on cable TV that no, he had in fact broken serious Senate rules. Hysterics yawping over a committee hearing.

This is not the way these hearings ought to go. But then again, confirmation hearings have been in need of reform since before the Courts venerable little lady donned the black robes. The purpose of SCOTUS hearings is not a place for political pyrotechnics and questions about how they will rule in a particular case like Roe v. Wade. They ought to be to probe the nominee’s credentials, judicial philosophy and character—topics that appear relatively undiscussed in the case of Kavanaugh.

As far as credentials go, Brett Kavanaugh is a star. A graduate of Yale Law School, he penned over 300 opinions for the U.S. Court of Appeals for the DC Circuit  often referred to as the second highest court in the land. The liberal-leaning American Bar Association unanimously recognized Kavanaugh as “Well Qualified.” In the words of leftists lawyer of SCOTUS Lisa Blatt, “Sometimes, a superstar is just a superstar, and that’s the case with this judge.” Kavanaugh’s credentials are unquestionable. However, that has not prevented Democratic 2020 hopefuls from leveling potshots on his judicial philosophy.  

Despite effusive praise form liberal voices in legal America, some sizeable swath of people question the independence of a judge nominated by someone they view as an illegitimately elected, addle-brained president, riddled with scandal and hounded by an allegedly Pinocchio-esque nose supposedly growing longer by the tweet. And yet there is this from Kavanaugh:

Some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. [Judges] cannot be buffaloed, influenced, or pressured into worrying too much about transient popularity when we are trying to decide a case.

Kavanaugh does not just theoretically postulate or extol from afar the judicial virtue of an independent judiciary: he has lived it. After being appointed judge by President Bush, Kavanaugh decided against his former boss and supposed benefactor’s administration eight times in two years.  Hardly the behavior of a lapdog for the executive branch or a political sycophant Kavanaugh’s judicial philosophy is apparent and blameless. He fully supports an independent judiciary and holds to the first principles of textualism and originalism – allowing the law to shape his opinion on a case rather than imposing his own opinions onto it.

Though Kavanagh has impeccable credentials and an airtight philosophy, the basketball-coaching judge’s character has oft been mallinged of late. From the apparently frivolous accusations of sexual misconduct to the laughably false charges of racism and questionable claims of perjury before the committee, Kavanaugh’s good name has been dragged through the mud without heed to actual facts.

Senator Ben Sasse summarizes the accusations saying “[Kavanaugh’s] been accused of hating women, hating children, hating clean air, wanting dirty water. [He’s] been declared an existential threat to our nation. Alumni of Yale Law School, incensed that faculty members as [his] alma mater praised your selection, wrote a public letter to the school saying, ‘People will die if Brett Kavanaugh is confirmed’”  This type of rhetoric is manifestly absurd.

As a country, as a people, we must take a collective breath and refuse to descend to such drivel. While we may disagree, we must do so agreeably. I believe we all can agree that Kavanaugh is a high-qualified judge whose character we can admire even if your judicial philosophy differs from his.