SCOTUS | Democrats’ Delay Tactics Aimed at Distracting from Judge Kavanaugh’s Qualifications

 

One week from today, Judge Brett Kavanaugh will appear before the Senate Judiciary Committee for the first day of his confirmation hearing. After reviewing Judge Kavanaugh’s very extensive record, I’m convinced that he is perhaps the most qualified person ever nominated to the Supreme Court. 

 

Some of my colleagues on the other side—including all of the Democratic members of the Judiciary Committee—have asked that I delay Judge Kavanaugh’s hearing. They’ve asked me to delay the hearing because of legal issues surrounding some of the President’s former associates. It’s not quite clear to me what one has to do with the other, but this is—by my count—the third strategy Democratic leaders have used to try to delay Judge Kavanaugh’s hearing.

 

Liberal outside groups, if you recall, announced their opposition to any one of the 25 potential nominees before the President made his selection. Some Democrats joined them, and many others announced their opposition immediately after the nomination. The Minority Leader, before he even had the chance to meet with Judge Kavanaugh or review his record, said he would fight the nomination with everything he’s got.

 

Democratic leaders’ first strategy was to try to argue that the Biden Rule—which bars the confirmation of Supreme Court justices in a presidential election year—applies during midterm election years.

 

Don’t forget, many of these senators argued in 2016 that the Biden Rule didn’t even exist. Fact-checkers and outside observers widely rejected their argument. The historical record was clear: the Biden Rule has never applied during midterm election years.

 

The second strategy Democratic leaders pursued was to attempt to bury the Senate Judiciary Committee in mountains of irrelevant paperwork. I have discussed the issue at length previously, but the bottom line is that we have received more pages of documents from Judge Kavanaugh’s time as an Executive Branch lawyer than we did for any previous Supreme Court nominee. This on top of the 307 opinions he wrote and hundreds more he joined as a judge on the D.C. Circuit over the past twelve years—as well as the nearly 18,000 pages we received in connection with his Committee Questionnaire.

 

Democratic leaders are now asking me to delay Judge Kavanaugh’s hearing because of some of the President’s former associates’ legal troubles. But this is just another obvious and opportunistic attempt to push the confirmation past the midterm elections.

 

After all, both Justice Ruth Bader Ginsburg and Justice Stephen Breyer were confirmed while President Clinton was personally under investigation for the Whitewater controversy. In fact, Justice Breyer was confirmed while President Clinton’s personal documents were under a grand jury subpoena. Moreover, between June 1993 and February 1999—a period during which President Clinton faced significant legal jeopardy—the Senate confirmed 248 district judges and 50 circuit judges to lifetime appointments. It’s clear that Democratic leaders’ latest attempt to delay the confirmation is unsupported in law and history.

 

Another reason Democratic leaders have focused on these issues is to divert attention from Judge Kavanaugh’s record. They know that Judge Kavanaugh is the exact type of justice the American people want.

 

Judge Kavanaugh has served for twelve years on the D.C. Circuit Court of Appeals. During that time, he authored more than 300 opinions and joined hundreds more. The Supreme Court has, in at least a dozen separate cases, adopted a legal position advanced by Judge Kavanaugh in his opinions—a very impressive record.

 

Judge Kavanaugh has demonstrated that he understands the proper role of the judge. In numerous opinions and in speeches and publications, Judge Kavanaugh has eloquently expressed that judges must interpret the law as it is written, not how they wish the law was written.

 

He recently said: “When courts apply doctrines that allow them to rewrite the laws (in effect), they are encroaching on the legislature’s Article I power.”

 

Judge Kavanaugh has also said that judges must apply the same approach to all cases.

 

He said: “Like cases should be treated alike by judges of all ideological and philosophical stripes, regardless of the subject matter and regardless of the identity of the parties to the case.”

 

Judge Kavanaugh’s judicial record reveals that he follows his own advice. He decides cases based on his understanding of the law as written, not his own personal policy preferences or who the litigant is.

 

In addition to his impeccable qualifications and record of achievement, Judge Kavanaugh has shown a dedication to public service, mentorship, and diversity. He spent all but three years of his legal career in public service. He volunteers his time to coach both his daughters’ youth basketball teams and serves meals to the homeless with Catholic Charities.

 

Judge Kavanaugh is a proven mentor to law students and young lawyers. Judge Kavanaugh has taught courses at Harvard Law School on the Separation of Powers and the modern Supreme Court since 2008. The Senate Judiciary Committee received a letter in support of his confirmation from his former students. They wrote:

 

“We . . . represent a broad spectrum of political and ideological beliefs, as well as perspectives on judicial philosophy. We may have differing views on political issues surrounding the confirmation process, but we all agree on one thing: Judge Kavanaugh is a rigorous thinker, a devoted teacher, and a gracious person.”

 

They continued:

 

“Both inside and outside the classroom, Judge Kavanaugh evinced a genuine warmth and interest in his students and their careers.

 

“He was exceptionally generous with his time, making himself available to meet with students not only to discuss the class, but also to assist with their scholarly writing or to offer career advice. In many instances, he has continued to provide advice and support long after the class ended by writing letters of recommendation and serving as a valued mentor. In our view, his genuine interest in helping young lawyers demonstrates a deep commitment to the legal community as a whole.”

 

Federal judges also play an important role in mentoring the next generation of lawyers. They typically hire four new law clerks each year to help them research and decide cases. A law clerk is like a judge’s right arm. A judge’s law clerks know the judge better than anyone else. Day-in and day-out, law clerks work closely with the judge in chambers every day on complex legal issues. Judge Kavanaugh has evidently taken his mentorship role seriously.

 

His former law clerks submitted a letter to this committee strongly supporting his confirmation. They wrote:

 

“It was a tremendous stroke of luck to work for and be mentored by a person of his strength of character, generosity of spirit, intellectual capacity, and unwavering care for his family, friends, colleagues, and us, his law clerks.”

 

“He is unfailingly warm and gracious with his colleagues no matter how strongly they disagree about a case, and he is well-liked and respected by judges and lawyers across the ideological spectrum as a result. . . . He always makes time for us, his law clerks. He makes it to every wedding, answers every career question, and gives unflinchingly honest advice. That advice often boils down to the same habits we saw him practice in chambers every day: Shoot straight, be careful and brave, work as hard as you possibly can, and then work a little harder.”

 

One of the areas where Judge Kavanaugh has had a particular impact is his commitment to diversity. More than half of his law clerks have been female. Indeed, during one year, all four of his law clerks were female—which was a first for the D.C. Circuit. Judge Kavanaugh’s female law clerks sent the Committee a letter. They wrote:

 

“We know all too well that women in the workplace still face challenges, inequality, and even harassment. Among other things, women do not enjoy a representative share of prestigious clerkships or high-profile legal positions. But this Committee, and the American public more broadly, should be aware of the important work Judge Kavanaugh has done to remedy those disparities. In our view, the Judge has been one of the strongest advocates in the federal judiciary for women lawyers. . . .”

 

Additionally, Judge Kavanaugh has a track record of recruiting and hiring diverse law clerks from the best law schools. It’s clear that he cares about expanding opportunities to unrepresented groups in the law. The legal profession should be open to anyone, regardless of where they grew up or where their parents emigrated from. Judge Kavanaugh’s clerks reflect this important principle.

 

In sum, Democratic leaders committed months ago to oppose Judge Kavanaugh’s confirmation. They’ve thrown a lot against the wall to try to delay his confirmation, but nothing has stuck. Judge Kavanaugh will have his hearing next week, and I’m looking forward to it. Based on my review of Judge Kavanaugh’s extensive record, it appears that he is extremely qualified to sit on the Supreme Court, he understands the proper role of a judge in our constitutional system, and he has devoted time to serving his community and improving the legal profession.

 

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