What kind of conservative judge is Brett Kavanaugh?
Of course, Judge Brett Kavanaugh is a conservative jurist. You knew the nominee was going to be a conservative before he was announced. In fact, both supporters and opponents of the President had drafted their press releases praising (or condemning) the nominee’s conservative point of view, long before the actual name was revealed. One group even made the mistake of sending out its twitter message without correcting for the “fill in the blank” portion of the attack after he was nominated.
But what does it mean to be a conservative jurist?
At the announcement of his nomination, Judge Kavanaugh said: “My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
That would seem to put him in the textualist-originalist camp. Most conservative judges follow these principles, which were enunciated clearly by the late Justice Antonin Scalia. At its core, this approach to interpreting the Constitution looks to the language of the constitution itself and asks what the words mean.
It does not look to “an emanation from a penumbra” as Justice William O. Douglas wrote in Griswald v. Connecticut.
An originalist looks to the meaning of the words as understood at the time the constitution, or the Amendment was ratified. In other words, what did the people who adopted the Constitution, think they were doing? Here is the heart of originalist jurisprudence. The Constitution is treated as a contract between the government and the governed. The Declaration of Independence, after all, says that governments derive “their just powers from the consent of the governed.” When “we the people” ratified the Constitution, we made a contract among ourselves for the government of ourselves. Like any contract, it can be amended: but only by agreement of the parties to the contract.
Changes are (or should be) made by Amending the Constitution, which has been done 28 times in our history. Amendments are time consuming, difficult and very political, but they represent the consent of the parties to the Constitution. As University of Chicago law professor William Baude, says: “[the] law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process."
The alternative, advocated by those like former Justice John Paul Stevens, is a “living Constitution” which is altered and amended based on the judgment of a majority of the justices of the supreme Court. This method of amendment does
not need the consent of the governed. It does not require the heavy lifting of building a political consensus needed to amend the constitution. It is a lazy way to amend the constitution.
The consequence is that, instead of having fierce political battles over constitutional amendments, we have fierce political battles over confirmation of justices of the Supreme Court, who now engage in the process of amending the constitution by reinterpreting the text.
Kavanaugh, as a textualist, is going to be put through the political fires of the modern confirmation process precisely because he believes that it is the people, not the courts, who should amend their contract with the government.
Let’s hope he is confirmed, because he is exactly the kind of Justice we need to assure that the court fulfils its proper role: “to interpret the law, not make the law. “
John Ryder is a Memphis attorney, with Harris Shelton, who serves as Chairman of the Republican National Lawyers Association. He previously served as General Counsel to the Republican National Committee. Email him at ryderontheriver@gmail.com.