I’ve served on the Senate Judiciary Committee for more than 40 years, and this week marks my 15th and final hearing on a Supreme Court nominee. It also marks what I hope will be the end of partisan high jinks designed to delay the confirmation of an all-star nominee.
After all these years, I’m good at judging judges. But you hardly need an expert to predict federal appeals court Judge Brett Kavanaugh’s jurisprudence. His 300 judicial opinions and various academic articles and speeches make his positions pretty clear—and this week’s hearing pretty predictable.
The only surprise this week was the embarrassing tantrums thrown by the misguided protesters who disrupted the hearing with sporadic squawks.
I had hoped that the activists would—as Sen. John Cornyn, R-Texas, put it—“get a grip” and treat the confirmation process with the respect it deserves. But while the loudmouths on the left pounded their fists, the grown-ups were having a serious discussion about what it means to be governed by the rule of law.
Kavanaugh’s smart answers were no surprise.
Loyalty to the Law, Not the President
Kavanaugh began his opening statement on Tuesday thanking President Donald Trump for the honor of his nomination. But on Wednesday, Kavanaugh made it clear that the president would not be his boss.
I asked Kavanaugh for assurances that he would not allow the president’s interests to affect his decision-making. He held up his pocket copy of the United States Constitution and replied, “I owe my loyalty to the Constitution.”
If there’s one president to whom Kavanaugh owes loyalty, it’s President George W. Bush. Bush nominated him to the U.S. Court of Appeals for the D.C. Circuit, and Kavanaugh worked for Bush in the White House for more than five years.
Did Kavanaugh ever rule against Bush’s policies? “There were a slew of cases” in which he did, he told the committee. He reminded us of the time he ruled in favor of Salim Ahmed Hamdan, Osama bin Laden’s driver and the Bush administration’s “signature prosecution.”
Will Kavanaugh protect Trump while he’s on the Supreme Court? “No president is above the law,” he told the committee.
And what makes a good judge? “Independence.” Well said.
Judges Are Umpires, Not Players
Like Chief Justice John Roberts, Kavanaugh describes the role of a judge as an umpire—“a neutral and impartial arbiter who favors no litigant or party.”
That means making decisions based on what the law requires, not personal preferences. He raised his decision in favor of Hamdan as a good example. “You’ll never have a nominee who’s ruled for a more unpopular defendant. You don’t make decisions based on who people are or their policy preferences. You base decisions on the law,” he said.
Kavanaugh also noted that judicial independence was necessary for the Supreme Court’s decision in Brown v. Board of Education, which rejected the discriminatory standard of “separate but equal.” He called the case “the single greatest moment in Supreme Court history,” made possible only because the justices didn’t fear political backlash.
Three Branches of Government, Not Four
Kavanaugh stuck to his commitment to rein in the administrative state. He knows what he’s talking about, because he’s reviewed countless agency actions during his 12 years on the D.C. Circuit.
“I am not a skeptic of regulation at all,” he said. “I am a skeptic of unauthorized regulation.” He told Sen. John Kennedy, R-La., that he was right to be worried that presidents can push policies through their agencies without congressional input.
Kavanaugh ably rebuffed Democratic challenges to his administrative law decisions.
In one of his more notable cases, he determined that the single director of the cyclopean Consumer Financial Protection Bureau must be directly accountable to the president.
“My remedy would have been to make [the director] removable at will,” Kavanaugh explained. That’s because Congress cannot engineer an agency to escape executive oversight.
He also educated Senate Democrats on their responsibility as legislators. The major rules doctrine—first announced by Justice Stephen Breyer, an appointee of a Democratic president—requires Congress to speak clearly when it grants agencies power to promulgate rules with particularly significant effect.
“That had not happened, in my view, with respect to net neutrality,” Kavanaugh replied when Sen. Amy Klobuchar, D-Minn., challenged his dissent in a case involving the Obama-era Federal Communications Commission’s “net neutrality” internet policy.
A Fundamentally Decent Person
In my opening statement to the Judiciary Committee, I described Kavanaugh as a smart, capable, and fundamentally decent person. His answers so far have proven me right.
To him, a good judge understands that his decisions affect “real people” in the “real world,” and for all his professional achievements, he wants to be remembered not only as a “good judge,” but as a “good dad” and “a good husband.”
The past few days of questioning have only confirmed what we already knew: Kavanaugh is eminently qualified to serve on the Supreme Court. The Senate should confirm him without delay.
