Later this week, the Senate is expected to vote on the confirmation of D.C. Circuit Court Judge Brett Kavanaugh to the Supreme Court. Judge Kavanaugh was nominated by President Donald Trump on July 9th, 2018 and was included in The Heritage Foundation’s original list of potential Supreme Court nominees.
Judge Kavanaugh is a Supreme Court nominee who will, based on his record, uphold the rule of law in a fair and unbiased manner, honor the separation of powers expressed in the U.S. Constitution, and interpret the text of the Constitution as originally written. Judge Kavanaugh is a “judge’s judge” who maintains a record of deciding cases based on the law rather than political or personal opinions, or a willingness to create unwritten rights supposedly hidden between the lines.
A graduate of Yale College and Yale Law School, Kavanaugh went on to clerk for Justice Kennedy and has served for the last 12 years on the U.S. Court of Appeals for the D.C. Circuit. He has written more than 300 opinions on the appeals court and is well qualified to serve on the highest court in the land.
During his time on the D.C. Circuit Court, Judge Kavanaugh demonstrated a clear commitment to faithfully interpreting the law as written, rather than legislating from the bench. John Malcolm, Vice President for the Institute for Constitutional Government at The Heritage Foundation, and Elizabeth Slattery, Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies at The Heritage Foundation, write:
Kavanaugh is a committed textualist. As Kavanaugh succinctly stated in a book review published in the Harvard Law Review, “The text of the law is the law.” He has reiterated this view in many of his opinions. In Fourstar v. Garden City Group, Inc. (2017), he wrote, “It is not a judge’s job to add to or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.” And in District of Columbia v. Department of Labor (2016), he writes, “As judges, we are not authorized to rewrite statutory text simply because we might think it should be updated.”
Judge Kavanaugh has also demonstrated a robust record of conservative jurisprudence. He upheld the separation of powers by ruling that the structure of the Consumer Financial Protection Bureau is unconstitutional in PHH Corporation v. Consumer Financial Protection Bureau. He challenged the practice of Chevron deference in Coalition for Responsible Regulation v. EPA, which forces judges to defer to a federal agency's interpretation of their own ambiguous statute. He also defended the Second Amendment, writing in a dissenting opinion in Heller v. District of Columbia – a subsequent case to the Supreme Court’s landmark ruling acknowledging the Second Amendment’s protection of an individual right to keep and bear arms.
From the very beginning, Senate Democrats have engaged in an all-out war to stop Judge Kavanaugh’s confirmation by any means necessary, including the latest unverified character assassinations that are contrary to what we do know about Brett Kavanaugh. The day after Judge Kavanaugh was nominated, Senate Minority Leader Charles Schumer (D-N.Y.) promised to “fight this nomination with everything I’ve got.” Sen. Cory Booker (D-N.J.) accused those who support putting Judge Kavanaugh on the U.S. Supreme Court of being “complicit in evil.” Other opponents of Kavanaugh claimed that Americans would die if he was confirmed and some questioned his integrity since he used a credit card to buy baseball tickets.
Unfortunately, Senate Democrats desire a Supreme Court justice that will legislate from the bench and help advance liberal domestic policy. The nomination of Judge Kavanaugh is a direct threat to that vision since he will rule to uphold the law, honor the separation of powers, and interpret the text of the Constitution as it was written.
Judge Kavanaugh, demonstrably, is not an activist judge and is precisely the kind of nominee Senators from both political parties should be looking for in the next Supreme Court Justice. The time for obstruction and delay is over. The Senate should carry out its “Advise and Consent” role and confirm Judge Brett Kavanaugh to the Supreme Court.
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