Kavanaugh Will Defend the Constitution, Uphold Rule of Law

Kavanaugh Will Defend the Constitution, Uphold Rule of Law
AP Photo/Jacquelyn Martin
Kavanaugh Will Defend the Constitution, Uphold Rule of Law
AP Photo/Jacquelyn Martin
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A comical situation unfolded at the U.S. Supreme Court ahead of President Trump’s nomination announcement earlier this month: Joined by VIPs of the progressive left, including Bernie Sanders and Elizabeth Warren, protesters loudly trumpeted their so-called “principled” opposition to the nominee. But because no one yet knew who would actually be nominated, the assembled crowd kept a handful of signs at the ready, each emblazoned with an exhortation to “Stop” a different person; some protesters with handwritten signs simply left one line blank, ready to insert whatever name happened to be announced. 

Farcical as it is, this kind of knee-jerk opposition to an unknown nominee is symbolic of the broader attitude of those on the left. If President Trump somehow found a way to resurrect John Marshall from the dead and nominate him, one wonders if even that would be enough for Senate Democrats. 

Unfortunately for them, however, Judge Brett Kavanaugh is tailor-made to expose their partisan theatrics. Judge Kavanaugh is one of the most qualified people President Trump could have nominated. He currently sits on the U.S. Court of Appeals for the D.C. Circuit, unofficially dubbed “the second highest court in the land” for the magnitude of consequential cases that come before it. (Note that the “Highest Court in the Land” is the informal name of the basketball court on the fifth floor of the Supreme Court building.) Many of his more than 300 opinions have been influential at the Supreme Court. A former Anthony Kennedy clerk with impeccable credentials, he is one of the most respected jurists in the nation. 

Judge Kavanaugh has written in glowing terms of the late, great Justice Antonin Scalia’s judicial philosophy: “The judge’s job is to interpret the law, not make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.” 

For those who have rightly been frustrated by the court’s tendency over the years to legislate from the bench and conjure fanciful new “rights” out of thin air, this is music to our ears. And his record backs up his rhetoric. 

In countless cases, Judge Kavanaugh has faithfully applied the plain meaning of statutes and stayed faithful to the Constitution. In a blistering dissent from a decision that forced the federal government to facilitate an abortion for an illegal immigrant minor, he lambasted the “novel” idea that the Constitution – which, of course, never mentions abortion at all – gives illegal immigrants, particularly children, a right to abortion on demand in the United States. 

Neither has he hesitated to defend rights that are in the Constitution, such as the free exercise of religion. In another dissent, he attacked Obamacare’s contraceptive coverage mandate, and he has rejected the spurious claim that the Constitution prohibits any and all prayers at government functions. The intolerant secularism that attempts to twist the First Amendment into a weapon for bludgeoning faith from the public square will have yet another formidable opponent on the Supreme Court. 

An underreported but vital element of Judge Kavanaugh’s jurisprudence is his healthy skepticism of the “Chevron Deference” doctrine. This thoroughly unconstitutional judicial innovation amounts to a rejection of the constitutional role of the judiciary: as James Madison put it, “to say what the law is.” Joining Justice Neil Gorsuch as a skeptic of Chevron, Judge Kavanaugh has written that it is “in many ways … nothing more than a judicially orchestrated shift of power from Congress to the executive branch.” 

The greatest costs to our democracy come when the Supreme Court views itself not as an interpreter of law and the Constitution but as the final arbiter of contentious questions, thereby short-circuiting public debate, silencing the voice of the people, and eroding federalism. This approach arbitrarily redefined marriage for the whole country and made the killing of an unborn child a constitutional right. The appointment of Judge Kavanaugh, like the appointment of Justice Gorsuch, is a repudiation of that heavy-handed, top-down, and elitist style. A strict adherence to the Constitution will clear the way for more democratic debate, not less. 

The millions of Americans who believe that great questions are best decided in statehouses, rather than courthouses, by voters rather than judges, could not have hoped for better than Judge Brett Kavanaugh.

Ken Paxton is the attorney general of Texas.

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