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SCOTUS Nominee Hired By Elena Kagan, Brett Kavanaugh: ‘Judge must Interpret, Not make the Law’

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Published on: July 13, 2018

Editor’s note:  I just have one question, since he will be on the Supreme Court, does that mean that Kavanaugh will be interpreting Constitutional law or case law?  There is a difference you know.  If he is to fulfill his duty to the constitution, then he should be interpreting constitutional law, not merely case law, which destroys progressive arguments about “precedence.”  And this is what we really need to get back to if we want to see a return to our foundations.  The fact that he was hired by Elena Kagan should be all you need to know about whether or not he understands constitutional law or not.

President Trump’s latest nominee to the Supreme Court is a distinguished legal mind who has up to now earned respect on both sides of the aisle.

All of that goodwill from the left will likely disappear now that Judge Brett Kavanaugh is President Trump’s nominee, but the reality is that he’s has a record that makes him one of the brightest legal minds in America.

The bottom line is that he’s well-suited for the Supreme Court, and he has the bonafides to prove it.

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During his speech accepting President Trump’s nomination Judge Kavanaugh said something that everyone in America should agree with, but in today’s climate likely won’t.

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. 

For the past 11 years, I’ve taught hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan.

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.

Again, this statement should be something that we expect from any of our nation’s judges, but most Americans today simply want a judge to rule as they wish on the issues they care most about.

Sadly, there is reason to be worried about his jurisprudence beliefs may not be as “safe” and “constitutional” as we conservatives would like.

For example, while Judge Kavanaugh argues that a judge should interpret the Constitution as written, he goes on to say that this view should be informed by precedent.

On the surface, this isn’t a problem. A judge should take precedent into account when ruling on a case. But I fear that Kavanaugh may rely too heavily on precedent in his rulings – based upon what he said just a few years ago:

“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the” #SCOTUS.

Now, Kavanaugh said this in 2006 in response to Senator Chuck Schumer’s question, “Do you consider Roe v. Wade to be an abomination?” In reality, as a Circuit Court judge, there was nothing that Kavanaugh could do about Roe v. Wade, so perhaps knowing this, Kavanaugh was simply being coy. Perhaps, he was telling Schumer that as a Circuit Court Judge he wouldn’t do anything anti-Roe, but he still did believe that the opinion was an “abomination.”

I don’t know.

And that’s what worries me. Roe v. Wade is a direct assault on the Constitution, undermining the most basic premise of a person’s right to life.

I hope that Judge Kavanaugh proves to be as solid a selection as Justice Gorsuch has proven to be, but I have my doubts.

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