Judge Kavanaugh and the Constitution

July 12, 2018

by John McClaughry

President Trump has nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, to serve on the Supreme Court.

The President noted the importance of choosing a Justice who was committed to upholding the Constitution, stating, “In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions. What matters is not a judge’s political views, but whether they can set aside those views to do what the law and the Constitution require.”

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 of course is a central issue: does the Court have to find a base in the Constitution to uphold acts of Congress or strike down laws as unconstitutional? Or can the Court manufacture a rationale to uphold a law or create a new right  that can be found nowhere in the Constitution?

It’s pretty clear, from his twelve years on the Circuit Court, that Judge Kavanaugh believes the actual Constitution must determine the outcome of cases coming to the Court, not five justices just making up stuff to support their preferences. That’s a very good thing.

The Left’s campaign to reject Judge Kavanaugh will be extraordinarily savage, dishonest, and even hysterical. The American people deserve much better than what they’re about to experience.

– John McClaughry is vice president of the Ethan Allen Institute

{ 1 comment… read it below or add one }

Gordon Payne July 14, 2018 at 9:01 am

Other than the Constitutional concern well articulated here, any nominee for SCOTUS must understand the check and balance of Federal, State and private action, taking extreme care to minimize the intervention of the state in the exercise of rights by the citizenry, mere rational relation insufficient, particularly where such rights have been vested by the test of time as not merely essential to good order, but virtuous in their wholesome practice to good habit. And that requires an allegiance unimpaired by any fundamental belief demanding obedience to any other human authority.


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