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10/03/2018

Randy Barnett on Judge Kavanaugh and Judicial Philosophy
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: The Case for Kavanaugh: How "judicial philosophy" figures into the decision to support or oppose a nominee (making an argument "without regard to the questions raised after the close of his Senate Judiciary Committee hearing").  From the core of the argument:

I agree with Joe Biden who, as Senate Judicial Committee chair, insisted that a nominee's "judicial philosophy" is also relevant. It was on that ground that Biden and his Democratic colleagues—joined by six Republicans—opposed the confirmation of Judge Robert Bork, who easily met the standard for smarts, skills, etc.

What is "judicial philosophy?" As the term suggests, "judicial philosophy" is about the views of a nominee not his or her ability. Above all, it is a nominee's view of (a) the proper method of interpreting our written Constitution, and (b) the proper role of a judge in our constitutional republic. With respect to the former, Brett Kavanaugh is an "originalist," which today means he believes that the meaning of the text of the Constitution should remain the same until it is properly changed by an Article V amendment.

The original meaning of the text is the meaning the general public would have ascribed to the words and phrases of the Constitution in context. This "original meaning" originalism is different from the focus on original framers intent that originalists like Robert Bork once advocated. "Framers intent" originalism asked how the framers would have decided a case now before the court, which is actually a thought experiment, not a historical question. Today's originalists recognize that the application of original meaning to the facts of a case is distinct from identifying the content communicated by the text that is to be applied.

With respect to the role of the judiciary, Judge Kavanaugh thinks it is as much a duty of a judge to invalidate a law that conflicts with the original meaning of the Constitution as it is to uphold a law that comports with that meaning. In contrast, a "judicial conservative" like Robert Bork professed a commitment to "judicial restraint." By this is meant a judge should defer to the majoritarian or "popularly accountable" branches of government.

And from the conclusion:

Because I think the meaning of the text of the Constitution should remain the same until it is properly changed by amendment, and that judges have a constitutional duty to invalidate laws that conflict with that meaning, I believe the President's choice of Brett Kavanaugh—who is otherwise highly qualified—should be confirmed. If Democrats disagree they should specify the approach they think is better.

If their "judicial philosophy" is that a judge should simply reach all the outcomes that a progressive Democrat would like the Supreme Court to reach, they should candidly say so. If they believe that the precedents they like—like Roe v. Wade—are sacrosanct, but those they detest—like Citizens United—are to be discarded, they should identify how we know which precedents are binding and which are not.