Last Monday night, President Donald Trump announced Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. Over the coming weeks, we will get to witness a circus with politicians and the media competing with each other to see who can say the most outrageous thing about the candidate nominated and highlight who they would have nominated. We will then witness the main event – the hearings in the Senate where Kavanaugh will be asked questions with an agenda and a bias. Below are 6 things he (or any future nominee) should say, but will he?
The folks in media on BOTH sides are looking for a nominee who shares their ideology. Our friends on the left want a nominee who is liberal and many of our friends on the right want a nominee who is a conservative. As the next Justice of the Supreme Court, I state clearly that while I have my own personal ideology and belief system, I will leave it at the door of the Supreme Court when I am working.
The idea of a Justice having and ruling with an ideology is wrong and not part of the job description – my job is to review cases, listen to all arguments and base my sole decision on whether the case is constitutional or not. My own opinions are irrelevant and at times may involve me ruling against my personal opinion.
Loyalty is a big word in politics and politicians love to demand it from people they help and nominate. As the next Justice, I should state I have no loyalty to any party, any ideology, or to any President; even to President Trump who nominated me. MY loyalty only belongs in one place – that is in the Constitution and in the oath I will take on a successful appointment, which in part reads:
I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.
Loyalty to anything but the Constitution is going against the wishes of America's founders and not part of my job description.
Role of Government
During any confirmation hearing, you will hear questions from politicians who will bring up cases and prior rulings to gauge what side of the issue they share and to see how they rule. Would Kavanaugh show the courage to highlight the Constitution and remind those in the hearing that he won't always rule on their side, but he will enforce the Constitution that is violated on a daily basis by Congress? He should use the opportunity of a hearing to remind this and future governments that the Constitution calls for three co-equal branches of government and they all have very different roles on responsibilities.
The Constitution is very clear when it comes to the role of Congress – there are 18 clauses under Article 1, Section 8 of the Constitution which grants certain powers to the legislature and everything else is to be left to the states. If Congress passes a law that is not covered under those 18 clauses, would he vote against it and define it as unconstitutional? Likewise, the Constitution is very clear when it comes to the role of the Presidency. The role of the President has grown un-Constitutionally since President John Adams and 1797 Alien & Sedition Act. If any President acts outside the clear boundaries of Article 2, or decides to pass laws and act without Congress, would he vote against it and define it as unconstitutional?
Will Kavanaugh point out one of the worst rulings of the Court - the ruling of Marbury v Madison in 1803? This increased the power of the Court and started the path of making the Court the sole arbiter and definer of what is and is not constitutional. We saw this with President Bush when he said (around 2006/2007) that we should just let the Supreme Court decide if a bill was Constitutional or not.
This is not the government America's founders had in mind.
Every two, four, and six years, new and returning members of Congress take an oath of office to preserve, defend, and protect the Constitution of the United States. Every member of Congress, the President, and the nine justices on the Supreme Court hold a duty and responsibility to decide on whether a bill is Constitutional or not.
America's founders were very clear about having three co-equal branches of government.
America's founders were very clear about having three co-equal branches of government. It's time members of Congress and the President start to take their oaths more seriously and the people demand they do.
It is wrong for someone to abdicate their responsibility but it also puts Americans in danger of tyranny as the Supreme Court has gotten many decisions wrong including the cases of Dred Scott, Korematsu and Plessy v Ferguson.
If you have ever listened to any argument before the Supreme Court, or even read some of the decisions, you will notice two common threads. You will notice the Constitution is rarely mentioned or discussed but what we call precedent or prior case law is discussed the most.
Will Kavanaugh clearly state that while he will listen to any and all arguments made before him and that he will read all the rulings in prior cases, they will only play a very small part in his rulings? If a law violates the constitution, should it matter how many justices ruled on it previously, what precedent that case set, or even what their arguments were? Would he publicly dismiss this and state their decisions will be based largely on the actual Constitution and the intent behind our founder's words?
Role of SCOTUS
Lastly, will Kavanaugh state that there will be times when they have to make a ruling which they personally disagree with or that will potentially hurt people? Despite modern thinking from people like Chief Justice Roberts, it is not the job of a Supreme Court Justice to write laws.
The sole job is to examine laws and pass judgment on their Constitutionality. A law can be passed in Congress and can have the best and most noble intentions, but those feelings and intent are irrelevant if it violates the Constitution.
When you watch the media over the coming weeks, how many of these points do you think will be debated on either side? When you watch the confirmation hearings, do you think Brett Kavanaugh will make any of these points?
Lastly, put yourself in the Oval Office. If you knew someone would make these points, would you nominate them? Would your friends and family?