July 10, 2018

A Strong Mainstream Pick


  • Judge Brett Kavanaugh is a highly qualified, mainstream judge, who has served on the D.C. Circuit since 2006.
  • Even before the president made his pick, Senate Democrats indicated they would stick to their old playbook and unfairly attack the nominee, with several already committing to vote no.
  • Judge Kavanaugh has a long track record of ruling based on the text of the law and Constitution, rather than based on what he would like the law or Constitution to say.

President Trump has selected Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. When he is confirmed, Judge Kavanaugh will become, after Justice Neil Gorsuch, the second former clerk for Justice Kennedy on the court.

Judge Kavanaugh is a mainstream judge with excellent credentials. He has been on the D.C. Circuit since 2006. Before his appointment to the bench, he served in senior positions in the White House for five years and was a partner at Kirkland & Ellis LLP. He has also worked in the Office of the Independent Counsel and in the U.S. solicitor general’s office.


Judge Kavanaugh received his bachelor’s and law degrees from Yale. He clerked for Justice Kennedy after clerking for Judge Walter Stapleton on the Third Circuit and Judge Alex Kozinski on the Ninth Circuit.


With Judge Kavanaugh’s nomination, Senate Democratic leaders are using the same scare tactics used by liberal interest groups whenever a Republican president nominates a mainstream judge. Last year, Senate Democrats maintained the first-ever partisan filibuster of a Supreme Court nominee, the highly qualified Justice Neil Gorsuch. 

The left-wing war on Republican presidents’ Supreme Court nominees was amplified after their smears of Judge Robert Bork scuttled his confirmation to the Supreme Court in 1987, but it did not start then. Pretty much every Supreme Court justice nominated by a Republican president since President Gerald Ford nominated Justice John Paul Stevens in 1975 has faced unfair attacks from the left.

  • When President Ford nominated Justice Stevens, one liberal witness testified at his confirmation hearing on the group’s “grave concern” about his nomination and accused him of “antagonism to women’s rights.”

  • The same attacks were leveled in 1987 against Justice Kennedy, who is now being replaced by Judge Kavanaugh. When President Reagan nominated him, left-wing groups called Kennedy “sexist” and said his nomination “should be unsettling to those concerned with the health and legal status of women in America.”

  • When President George H.W. Bush nominated Justice Souter to the court in 1990, liberal activists warned that his “judicial temperament” was “very disturbing,” that he had “not demonstrated fairness or even compassion for racial minorities,” and that “instead of tearing down the walls of discrimination, Judge Souter’s confirmation could mean the erection of new barriers, a step backwards into dark ages we will no longer accept.” 

  • In 2005, when Chief Justice Roberts was nominated to the court by President George W. Bush, a representative for a left-wing group said that his record showed that he worked to “undermine women’s legal rights on the job, in schools, and in government programs.” A statement from another far-left group asserted that after his confirmation, “women’s and civil rights will be set back decades.”


As soon as Justice Kennedy announced his retirement, and well before President Trump picked Judge Kavanaugh to replace him, Senate Democrats faced “calls for aggressive action” from their far-left base. Liberal groups have called on Democratic Leader Chuck Schumer “to do everything in [his] power to unite Democrats to keep this seat empty — for as long as necessary.” The New York Times cited “Democratic strategists” saying, “the party needs to model its resistance to the successful fight Democratic senators waged in 1987 against Judge Robert H. Bork.”

Senate Democrats caved to these demands by making clear that they would obstruct the confirmation of anyone who President Trump might nominate, no matter how qualified. On June 28, Senator Schumer promised as much on the Senate floor. The day before, Senator Kamala Harris called all of the president’s potential nominees “complete non-starters.” Later that week, the Hartford Courant reported that both Connecticut Democratic senators “pledged ... to fight hard against any conservative justice nominated to the U.S. Supreme Court by President Donald J. Trump.” On July 9, before President Trump announced Judge Kavanaugh as the nominee, Senator Bob Casey wrote on Twitter that he “will oppose the nomination the President will make tonight because it represents a corrupt bargain with the far Right, big corporations, and Washington special interests.”


The premeditated attacks by Democrats are based on a misguided belief that the correct decision in a case depends on preferred policy outcomes, no matter what the law and Constitution require. Senator Schumer wrote an op-ed in The New York Times on July 2 making clear that he will fight the confirmation of any mainstream nominee unless he can confirm that the nominee will rule in a certain way. An acceptable Supreme Court nominee for Senator Schumer must, for instance, fight “the pernicious influence of dark money in politics” and rule in favor of Obamacare. This results-oriented formulation distorts the role of a judge, which the case Marbury v. Madison explained is “to say what the law is,” not to write the laws.

In a 2017 speech, Judge Kavanaugh described why a results-based orientation to judging is inappropriate. A “judge’s job,” he said “is to interpret the law, not to make the law or make policy.” Judges should “read the words of the statute as written” and read “the text of the Constitution as written, mindful of history and tradition.” Judges should not “make up new constitutional rights that are not in the Constitution” and should not “shy away from enforcing constitutional rights that are in the text of the Constitution.” “Changing the Constitution,” he said, “is for the amendment process.”

Judge Kavanaugh reminded listeners “that the structure of the Constitution – the separation of powers and federalism – are not mere matters of etiquette or architecture, but are essential to protecting individual liberty.” The rule of law in such a system “depends on neutral, impartial judges who say what the law is, not what the law should be.” Under “the structure of our Constitution, Congress and the President – not the courts – possess the authority and responsibility to legislate.” Therefore, he added, “clear statutes are to be followed.” That rule “is neutral as a matter of politics and policy.” So while the “text may be pro-business or pro-labor, pro-development or pro-environment, pro-bank or pro-consumer … judges should follow the text where it leads.”

Issue Tag: Judiciary