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Over the past two days, the Senate has debated whether to confirm Supreme Court nominee Brett Kavanaugh amongst the shouts and dis­plays of unruly pro­testors and sen­ators alike. This noise is indicative of a problem I believe Judge Kavanaugh can help fix. Rather than allowing the pol­itics and con­fusion of the moment to determine the outcome of a court case, the courts should rely on the written word of the law.

Judge Kavanaugh said this quite clearly in the Harvard Law Review: “The text of the law is the law.” In the case Fourstar v. Garden City Group Inc., Kavanaugh wrote, “It is not a judge’s job to add or oth­erwise re-mold statutory text to try to meet a statute’s per­ceived policy objec­tives. Instead, we must apply the statute as written.” If only our elected offi­cials could apply this same prin­ciple to Kavanaugh’s hearing.

Amer­icans ought to evaluate Supreme Court nom­inees, and all judges, on their com­mitment to upholding the Con­sti­tution and statutes of this nation. The courts, and the judges that fill them, must remain apo­litical and impartial, and if Kavanaugh can do this, he should be con­firmed without question.

An inde­pendent judi­ciary and the sep­a­ration of powers are both central tenets of American fed­er­alism. People are sup­posed to have their voice heard through the leg­is­lature and the election of the pres­ident, and the courts are sup­posed to remain apo­litical and impartial.


The politi­cization of the courts is already a problem that threatens to undermine the central tenets of fed­er­alism and the sep­a­ration of powers. For instance, the 9th Circuit declared Pres­ident Donald Trump’s immi­gration enforcement mea­sures uncon­sti­tu­tional — a decision later over­turned by the Supreme Court. As the Court’s majority stated, enforcement of America’s laws is clearly within the scope of the executive’s con­sti­tu­tional powers and respon­si­bil­ities. The 9th Circuit’s decision was seen widely as a political decision rather than actual legal inter­pre­tation. This is the danger of a politi­cized judi­ciary: Deci­sions are based on whatever is polit­i­cally fash­ionable rather than what the Con­sti­tution says. If it con­tinues, this politi­cization would render the concept of “equal justice under law”a farce.


Many of Kavanaugh’s vocal critics claim he will not uphold the sep­a­ration of powers and that he will be Trump’s pawn. An article written by Thomas Jipping for the Her­itage Foun­dation, however, cites Kavanaugh’s own writings to prove these fears are unfounded. The article states that in a 1998 law journal, Kavanaugh sided against the Nixon admin­is­tration, calling U.S. v. Nixon one of the “most sig­nif­icant cases in which the judi­ciary stood up to the pres­ident.”

Instead of staging trivial protests and encour­aging political grand­standing during the con­fir­mation hearings, Kavanaugh’s political adver­saries should realize they would be better served by orig­i­nalist judges like Kavanaugh — if the par­tisan tide turns, Kavanaugh would be one of the first to protect them from the whims of a fickle judi­ciary. An orig­i­nalist judge like Kavanaugh under­stands that legal matters are not deter­mined by who shouts the loudest. The Senate should, therefore, confirm Judge Kavanaugh to end an era of judicial “super-leg­is­lators.”

 

Patrick Farrell is a senior studying pol­itics and the pres­ident of College Repub­licans. 

  • Jen­nifer Melfi

    So the answer to what you call politi­cization is more politi­cization?