The Importance of Judicial Restraint and Originalism: Enter Brett Kavanaugh
Brett Kavanaugh will seek to protect and defend the Constitution by interpreting, rather than making, law.
The American Left is in a collective state of shock: in just eighteen months, President Trump has had the opportunity to appoint two Supreme Court justices. Yesterday’s appointment of Brett Kavanaugh is certain to become the most contentious issue as Republicans and Democrats engage in the typical partisan squabbling in the runup to November’s 2018 midterm elections.
Kavanaugh is a current judge on the United States Court of Appeals for the District of Columbia Circuit, a prestigious docket, traditionally a stepping stone to the nation’s highest court, who worked in the George W. Bush administration, and was involved in Kenneth Starr’s investigation of President Clinton in the 1990s.
Political observers know what comes next: Democrats will be quick to paint Kavanaugh as a far out of the mainstream right-wing extremist. They were quick to pounce on the Supreme Court pick.
Pennsylvania Senator Bob Casey wasted no time, announcing his almost certain opposition to the pick:
“If an individual from the list provided to candidate Donald Trump by far-right organizations like the Heritage Foundation and the Federalist Society is nominated, then I am highly unlikely to support that nominee…Justices who sit on the most important court in the world should not be selected by corporate interests and extreme right organizations.”
Moderate Republicans, however, were quick to praise Kavanaugh. Arizona Senator John McCain was quick to voice his unqualified support:
“In selecting Judge Brett Kavanaugh to fill the vacancy left by Justice Kennedy, President Trump has chosen a nominee with impeccable credentials and a strong record of upholding the Constitution. Over the course of Judge Kavanaugh’s impressive legal career, he has built a reputation as a fair, independent, and mainstream judge who has earned widespread respect from his peers.”
The battle begins.
The main current liability for the Republicans is their extremely slim margin in the Senate, where they outnumber the Democrats 51-49. McCain is battling brain cancer, and it is far from certain that he would have sufficient health to be present for a vote. Thus, they must do everything within their power to unify the caucus, and that includes paying particular attention to the concerns of moderates like Maine’s Susan Collins and Alaska’s Lisa Murkowski.
The Democrats’ ability to thwart Trump’s nominee rest on the shoulders of a handful of moderate Senate Democrats currently serving deep-red states which Trump won by significant margins. This includes Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp, and West Virginia’s Joe Manchin, all of whom are facing competitive reelection bids in the looming midterm elections, just four months away.
But fundamentally, what are the ideological differences between a Kavanaugh, and a Elena Kagan or Sonia Sotomayor?
Essentially, they boil down to judicial restraint and originalism. Judicial restraint holds that justices should limit the scope of their activities to the confines of the Constitution, only striking down legislation that is blatantly unconstitutional. Originalism refers to the theory that interpretations of the Constitution should be based upon the Framers’ original intent when they wrote the document.
Both are of critical importance to the political, social, and economic health of American society, and to the rule of law.
A Constitution, and respect for the rule of law, are the building blocks of a free and prosperous society. Those who seek revolution, those who seek to fundamentally alter the Constitutional order, those who seek to do away with established freedoms and liberties, present a clear and present danger to that free and prosperous society.
Americans should look to Colombia’s recent presidential election to examine the folly of seeking to overturn or abrogate a Constitution: leftist Gustavo Petro long advocated for a Constitutional Assembly, in order to do away with the current Constitution, and enact his radical reforms. Strangely, after reaching the second round runoff election, he changed his tune, emphatically claiming that he would never seek to abrogate the Constitution.
Colombian voters were rightly suspicious of such efforts, so Petro tried to hide his radicalism. It did not work, and Petro lost by a comfortable margin.
And why wouldn’t Colombian voters view abrogating and replacing the Constitution with suspicion? In neighboring Venezuelan, socialist strongman Nicolas Maduro did precisely that: packing a so-called “Constituent Assembly” with his radical socialist supporters, and writing a new Constitution custom-made to his specifications, completely bypassing the National Assembly, which had been elected by a two-thirds majority in the last elections.
Constitutions exist to provide stability and tranquility. The longer they have been in force, the greater their gravity. The United States Constitution has been in force since 1789. Over the course of its 229 year history, it has given the United States unprecedented prosperity and stability, making the Constitution the most successful political document in the history of the world.
Republican appointees generally wish to interpret existing law (ie. the Constitution). Democratic appointees generally wish to make law…free from the constraints of previous legal opinions and documents.
Justices Kagan, Sotomayor, Bader Ginsburrg, and Breyer have long been enemies of the Constitution.
For evidence of the danger of Obama’s Supreme Court appointees, look no further than Justice Elena Kagan’s hilariously incompetent dissent in the Janus v AFSCME.
The case involves an employee who objected to being forced to pay union dues, merely because he worked for the government. The public sector union, he was forced to support, used his funds to agitate for all manner of left-wing causes.
The Framers, never in their wildest imagination, would have imagined the rise of public-sector unions; these leeches on society are the greatest threat to the American taxpayer today, havens of corruption and crime, and essentially an activist wing of the Democratic Party, paid for by US taxpayers’ dollars! It is an outrage.
Kagan’s dissent is preposterous:
“Almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”
Undoubtedly, this year’s greatest example of judicial hypocrisy. She decries “black-robed rulers”, but in the same sentence deems that she has the power to decide what the First Amendment was meant for. And she champions “citizens’ choices” but has no regard for the choice of citizen Mark Janus, to exercise his First Amendment right, to not participate in a public sector union, as a contingent of employment by the state. Or for the matter, the right of citizens not to fund public sector unions and the corruption and far-left activism that they breed.
In the United States, in Latin America, and throughout the world, we need people in the judicial branch who seek to interpret, not make the law; and, we need people who are committed to upholding the rule of law.
Otherwise, we are heading on the road to dictatorship and serfdom.
Nothing is more important for the freedom and prosperity, and nothing is more important for the conservative and libertarian movement, than confirming a justice, like Brett Kavanaugh, who believes in both judicial restraint and originalism.