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07/11/2018

Judge Kavanaugh on Judging (and on Justice Scalia)
Michael Ramsey

I saw Judge Kavanaugh deliver this speech in 2016, reprinted in the Notre Dame Law Review: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions.  On Justice Scalia: 

What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound. The judge’s job is to interpret the law, not to 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. The Constitution is a document of majestic specificity defining governmental structure, individual rights, and the role of a judge. Remember that the structural provisions of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. Justice Scalia’s memorable dissent in Morrison v. Olson is of course the best example of that.  Remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. For judges, Justice Scalia would say, don’t make up new constitutional rights that are not in the text of the Constitution. But don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is necessary at times, but it is to be done by the people through the amendment process. Changing policy within constitutional bounds is for the legislatures.

That’s about it. Simple but profound.

RELATED: In the New York Times, Akhil Reed Amar: A Liberal’s Case for Brett Kavanaugh.  Among other points:

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.