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.