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September 4 2018

Behind the Sturm and Drang at the Kavanaugh Hearing: What Is the Role of the Court?

by Charlotte Hays

The Wall Street Journal editorial board cautions us not to expect the bipartisanship extolled at Senator John McCain's funeral to be on display during Judge Brett Kavanaugh's Supreme Court hearings, which begin today.

There will be lots of drama, but two excellent takes on the upcoming hearings pinpoint exactly what is at stake. First, the Wall Street Journal:

The real reason Democrats are furious about a Court with five conservatives is that it may no longer be an engine of progressive policy. If liberals want to guarantee a minimum income or a right to suicide, they will have to persuade voters and pass it democratically. No longer will five or six Justices be able to find such rights in the “penumbras” and “emanations” of the Constitution.

Chief Counsel of the Judicial Crisis Network Carrie Severino writes about some of the ins and outs we will likely see over the next four days (including grandstanding from 2020 presidential hopefuls), but ultimately she makes the same point as the Wall Street Journal:  

As for his own decisions as a judge, get ready for a lot of Democratic speechifying about cases based not on their legal merit but on which party won. That in turn betrays their dangerous premise: A judge’s role is to put his or her thumb on the scale for a favored party when deciding cases, blurring the distinction between law and policy.

Severino sees a silver lining: 

The upside (if there is one) to an increasingly sensationalistic nominating process is that these hearings can teach an important civics lesson about the proper role of unelected judges in our system of representative democracy. We can expect Kavanaugh to manifest the thoughtful, articulate, judicious qualities observed by so many who know him.

That in turn will expose the smear campaign against him for what it is: the desperation of Democratic senators who see courts as a vehicle to impose their policy preferences, and who are tripping over each other to position themselves further and further to the left.

Stephen B. Presser, an emeritus professor at Northwestern University's Pritzker School of Law, who has written extensively on how law professors shape U.S. jurisprudence, has a terrific piece in American Greatness that depicts the Kavanaugh appointment as an important step in restoring the Constitution.

It's a fine essay and it boils down to the same point the Journal and Severino make: judges and justices should not be legislators and were not under the Constitution as adopted and originally understood.

Amidst sturm and drang of this week, that is the central thing to keep in mind. The possible smears and attempts to trip up Judge Kavanaugh will be about preserving a system that has treated the courts as the left's legislature of last resort.

Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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