Legal experts say the fight for the original meaning of the Constitution will play a significant role in the confirmation process for President Donald Trump’s Supreme Court nominee.
“The fork in the road as it plays out in the Supreme Court is now going to be the centerpiece of these confirmation hearings,” said John Eastman, founding director at the Claremont Institute’s Center for Constitutional Jurisprudence.
Eastman made his remarks at an event Wednesday at The Heritage Foundation about federal appeals court Judge Brett Kavanaugh’s nomination to the high court.
“Are we going to have a Constitution that means what it says … that it’s the source of authority for judges to have judicial review in the first place,” Eastman said, “or are we going to have a ‘living’ Constitution, where the document itself can be molded and shaped to meet what the judges believe is kind of the modern exigencies of the day.”
Kavanaugh, 53, was nominated by Trump on July 9 to fill the seat of Justice Anthony Kennedy, who announced June 27 that he’s retiring.
Eastman said Kavanaugh’s confirmation process will force American society and the Senate to consider the question of the appropriate role of judges, as well as the influence of the Constitution in American law.
“Are we going to faithfully adhere to the Constitution and treat it as binding on us, or are we going to use it simply as a steppingstone to manipulate to achieve political ends that we couldn’t get in the political process,” he said. “That’s the two visions, the two paths that we have before us. I don’t want the judges to answer those questions, but I think it is incumbent upon the rest of us … to expose what the fight is really about.”
Kavanaugh was nominated in 2003 by President George W. Bush to the U.S. Circuit Court of Appeals for the D.C. Circuit, but he was not confirmed until 2006, on a Senate vote of 57-36.
Thomas Jipping, deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation, said Kavanaugh’s confirmation process will illustrate the conflict over the Founders’ vision for judges and the current move toward “activist” judges.
“In one view, advocated by America’s Founders, judges have a limited role, defined by the process or the method that judges follow to interpret and apply the law to decide cases,” Jipping said, adding:
In the other view, which was invented to challenge America’s Founders, judges have a virtually unlimited role, defined by the result that is delivered.
For political judges, the party issues do matter a great deal, and these judges use different approaches in different cases, cognizant of the political interests that their decisions might advance.
Hadley Arkes, founder and director of the James Wilson Institute, who moderated the event, said that Democrats have led the efforts to make judges be policy creators.
“The Democrats have become the party of the courts,” Arkes said. “They have depended on the judges to put across the parts of the liberal agenda that they are too afraid to campaign on in public, as with same-sex marriage … which was opposed by … Barack Obama until the courts came to the threshold of putting it across.”
Eastman said Kavanaugh’s dissent in Garza v. Hargan, a recent case involving whether an illegal immigrant girl who wanted to get an abortion and have the government facilitate it is a good sign that he will remain dedicated to upholding constitutional rights.
“Judge Kavanaugh’s … dissenting opinion there amounts to a claim that he is not going to lend his voice to expand a constitutional right that hadn’t existed in the first place,” Eastman said.