Op-ed: By every measure, Kavanaugh merits Supreme Court seat

Over 12 years as a federal appeals court judge, Kavanaugh’s opinions reflect a clear understanding of the judicial role under the Constitution.

David McIntosh

Outside the White House, no one knew the name of President Donald Trump’s Supreme Court nominee until minutes before Judge Brett Kavanaugh stepped into the East Room earlier this month. And yet on the most important question of all — the judicial philosophy of the nominee, whomever the president had chosen — the event was mercifully free of suspense. 

From the outset, we all knew that to be considered at all by Trump, any prospective justice would have to be a judicial conservative, understanding that courts exist to interpret our Constitution and laws without venturing to set national policy. In his 2016 campaign, Trump again and again promised to appoint justices in the mold of Antonin Scalia. And now, for the second time, he has delivered exactly that. 

Over 12 years as a federal appeals court judge, Kavanaugh’s opinions reflect a clear understanding of the judicial role under the Constitution. This is a judge who has firmly defended the separation of powers as designed by the framers; consistently adhered to the Constitution and laws as written; and left political issues to the executive and legislative branches, where they belong. He has authored more than 300 opinions for the U.S. Court of Appeals for the D.C. Circuit. Not one of them displays an impulse to overreach, grandstand, or achieve any objective beyond a fair decision in the case at hand.

At the appeals level, one measure of a judge’s influence is how often his or her reasoning is later adopted by the Supreme Court. This has happened at least 11 times with opinions by Kavanaugh. In fact, some of those opinions were dissents that the high court found more persuasive than the majority view of Kavanaugh’s circuit court colleagues. And whatever side the judge was on, his position rested on the clearest of principles. As he said on the night of his nomination, “A judge must be independent and must interpret the law, not make the law...A judge must interpret the Constitution as written, informed by history and tradition and precedent.”

As one of the founding directors of the Federalist Society, I of course agree with him, because that philosophy is faithful to the vision of the framers. This does not mean I can predict how a Justice Kavanaugh would rule in any given case. Indeed, two of the court’s most conservative members, Justices Clarence Thomas and Samuel Alito, do not always come down on the same side, even when applying fundamental constitutional principles. It does mean that Kavanaugh would not use his judicial powers to reach a desired result, or to create rights not found in the law or traditions of our country.

Should Kavanaugh be confirmed by the Senate, his modest, constitution-based approach to judging would be the prevailing one on the Supreme Court, a turn of events no one on the political left was expecting just two years ago. For decades, liberal activists have depended on federal courts to further agendas that have little or nothing to do with constitutional law, and that would go nowhere if pursued by democratic means.  These endless judicial power plays have brought deep divisions to the country. Now, so very suddenly, the winds have changed and the era of judicial supremacy is coming to a close. This explains the spreading panic in progressive circles over an obviously well qualified nominee.    

Lacking serious objections, all that Senate Democrats will have against Kavanaugh are menacing caricatures and hysterical warnings — tactics likely to work as well as they did against Justice Neil Gorsuch. As the nomination advances, it will be little noted that Trump’s model justice, Scalia, was confirmed by a unanimous vote, as was the departing Justice Anthony Kennedy. That’s a reminder of a time when obvious merit made for a straight path to confirmation. 

We’re now in a different day, when Senate Democrats are reduced to vowing, as Minority Leader Charles Schumer has put it, to resisting the nominee “with everything I’ve got.” The need for such bluster, however, only draws attention to what Kavanaugh’s got — which is, by every measure, the ability, temperament, and character we should all expect in a Supreme Court justice.

McIntosh, founding director of the Federalist Society, was a three-term U.S. House representative for Indiana’s 2nd district.