The U.S. Supreme Court is Bigger than Any President or Nominee – My Guide to the Nomination Hunger Games. Part I.

No one is truly objective when discussing Supreme Court nominees and their preferred judicial approach. I favor somewhat of a strict constructionist/historical approach and I am obviously generally pro-employer. I’ve tried to select articles which are legally-driven and that were not written by fire breathers. Nevertheless, my leanings still influence this two-part article.

People on the left should not be unduly worried about President Trump’s Kavanaugh nomination; nor should folks on the far Right anticipate reversal of Roe v. Wade and an abandonment of precedent. The Supreme Court has a way of moving lawyers to the middle and emphasizing amicable intellectual compromise.

Yes, Brent Kavanaugh will probably increase the Court’s movement to the right, but gradually and not aggressively. I say “probably” because unlike Democratic nominees, Republican nominees have often swung moderately to the center (Kennedy) or hard left. Let’s not forget that the most progressive and most prone to making laws of our lifetime was comprised mainly of republican nominees.

Chief Justice Roberts has also established that he will not allow rushed and aggressive movement. So I’ll raise issues and link to articles in the hope that you can make your own reasoned analysis and determine the likely effects of the nomination.

Issue 1 – Why can’t the President nominate someone like Anthony Kennedy?

Aside from the facts that BOTH parties seek to nominate a jurist aligned with their views and the term mainstream is meaningless because no definition satisfies a majority, Kennedy was a unicorn.

I’ll quote from a recent Washington Post article, “On abortion and other issues, Kavanaugh’s heroes are more conservative than Kennedy.”

Of course, it would be almost impossible to select a justice in the mold of Kennedy. His unique views provoked equally distributed frustrations: disappointing conservatives by authoring

Obergefell v. Hodges, which established a constitutional right for same-sex couples to marry, and outraging liberals with Citizens United v. FEC, which authorized unlimited campaign spending for businesses and other entities.

In one term, he was the only justice in both 5-to-4 majorities when he (and conservatives) removed a crucial part of the Voting Rights Act and when he (and liberals) overturned the federal Defense of Marriage Act, which denied recognition of same-sex marriages.

“There probably is not a single lawyer in the United States whose views align entirely with the justice’s, and there probably hasn’t been one for a while,” former Kennedy clerk Leah Litman wrote in a tribute to Kennedy on

Issue 2Obama nominee Merrick Garland should have been nominated, so do so now.

Garland was a fine jurist; then Circuit Judge Kavanaugh rightly profusely praised Garland. However, politics is a brass knuckle activity and don’t fool yourself – a Democratic controlled Senate would have done the same thing.

Issue 3 – What is the role of the Court?

Again, let’s not kid ourselves, BOTH parties sometimes wish that the Supreme Court would overturn and in essence make new laws in keeping with societal changes (Dems) or stem the legislative tide and restore traditional values (Republicans). In both cases, such desires clash with the Constitutional role of the Court and our system of checks-and-balances. Neither party should succumb to an ends justifies the means mentality.

Some might argue that the left – whatever that even means – may treat political actions with which they disagree as “evil” and thus worthy of any response – and that they trust the notion of wise educated philosophers as more reliable to make decisions than the unwashed common man. To my right leaning buddies who just cheered my bashing of elitism, the right often takes its distrust of the academic and intellectual establishment way too far. And fair is fair, the right sometimes yearns for a Judge who will reinforce “Christian values.”

The Court’s role is to interpret the law, not make it, but even that mission statement leaves considerable latitude to judges. Let’s return to the earlier Washington Post article…

Kavanaugh has spoken approvingly of the metaphor Chief Justice John G. Roberts Jr. used at his confirmation hearings of the judge as umpire. But there are no objective rules, he said, which frees some judges to impose their own views.

“It’s sometimes as if you were asked to umpire a baseball game, and you asked the commissioner of baseball whether the bottom of the strike zone was at the knees or at the hips, and you were told that it was up to you,” Kavanaugh said.

He also acknowledged that it was a difficult question as to when the Supreme Court should honor a precedent as settled law, or when it becomes important to overrule a wrongly decided case. “I wish I had the perfect answer,” he told one audience.

Kavanaugh does not seem inclined to rely on personal subjective beliefs as articulated in his praise of former Chief Justice Rehnquist, his judicial hero.

“He was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” Kavanaugh said.

“The court, case after case had seemed to be simply enshrining its policy views into the Constitution, or so the critics charged,” Kavanaugh said. “During Rehnquist’s tenure, the Supreme Court unquestionably changed and became more of an institution of law, where the court’s power is to interpret, and to apply the law [as] written, informed by historical practice, not by its own personal and policy predilections.”

I’ll do a separate post on the subject of Judicial Philosophy, but that is the real question. terms such as left, right, progressive, liberal and conservative really do not explain the differences in how Judges view the Constitution and make decisions.

As an example, the NYT wrote a solid piece analyzing Judge Gorsuch’s Legal Philosophy at the time of his nomination to the Supreme Court and described his philosophy as follows:

Judge Gorsuch, 49 — who was appointed to the United States Court of Appeals for the 10th Circuit, in Denver, by President George W. Bush — is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. This approach leads him to generally but not uniformly conservative results. (My emphasis added).

Some would argue that Gorsuch and perhaps Kavanaugh do not even neatly fit the “Originalist” school. Read this serious analysis of Gorsuch’s Judicial Philosophy and whether Philosophy matters.

Issue 4 – Does Judge Kavanaugh have the credentials and demeanor to be a Justice?

All but the extremists on both sides will admit that Kavanaugh is a judge’s judge and we have 11 years and 300 written opinions to show his analysis, writing style and judicial temperament.

SCOTUS (Supreme Court of the United States) Blog is a solid lawyerly resource and released a good summary about Judge Kavanaugh. Start here: Introduction: A close look at Judge Brett Kavanaugh.

From the NYT Op Ed, A Liberal’s Case for Brett Kavanaugh by Akhil Reed Amar, a Yale Law professor who taught Kavanaugh.

…. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues.

Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.

Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. ….

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous. ….

For a discussion on the misbelief that a Justice Kavanaugh will give President Trump a get-out-of-free card, read Kavanaugh on presidential power: Law-review article on investigations of sitting presidents (UPDATED). My read is that Kavanaugh felt misgivings about the negative effects on President Clinton of the innumerable Starr investigations in which he participated. Live and learn. I tend to agree.

 Issue 5 – Can Judge Kavanaugh write?

The ability to write well-reasoned decisions which actually provide Guidance to we poor suffering lawyers and citizens is NOT a common trait. Please tolerate my lawyerly nerding out.

From Law360 (July 10, 2018, 10) –

There’s no argle-bargle in Judge Brett Kavanaugh’s opinions. Instead, he’s made a name for himself on the D.C. Circuit with clear, concise writing.

Justice Anthony Kennedy took his share of knocks for grandiose and occasionally purple prose. The late Justice Antonin Scalia was fond of verbal pyrotechnics, particularly in dissent, using phrases like “jiggery-pokery,” “pure applesauce,” and yes, “argle-bargle.”


But legal writing experts agree: Whatever you think of Judge Kavanaugh’s judicial philosophy, this judge can write.

“Kavanaugh is a great opinion writer in the John Roberts or Elena Kagan tradition,” said Ross Guberman, president of training and consulting firm Legal Writing Pro LLC and the author of books including “Point Made: How to Write like the Nation’s Top Advocates.” “His sentences are crisp and controlled, his word choice punchy, his transitions seamless, and his analysis organized with military precision.”


Judge Kavanaugh has also been honored for his legal writing by The Green Bag, a law journal that annually recognizes a handful of judges for “exemplary legal writing,” for his 2012 opinion in Vann v. U.S. Department of the Interior. ….

Judge Kavanaugh’s style strives to make complex legal questions clear and accessible to a broad audience — a useful trick for a judge on a circuit court that often deals with knotty questions of administrative law.

…. The justices are writing for a variety of audiences: the litigants, the lower courts, journalists, and the public. But they’re also writing for each other. And if an opinion can be written clearly and succinctly, the reasoning that underlies it is often persuasive, or at least doesn’t go too far afield.

“You would hope that a Supreme Court justice is constrained by the need to tell a coherent story,” Livermore said. “Whether that holds up in practice is a different story.”

Issue 6 – Should Judge Kavanaugh pledge to not overturn Roe v. Wade or to uphold or attack other decisions?

Judges may not make pledges and when Senators seek such admissions, they are grandstanding for the press. From the above NYT Op Ed:

Everyone would have to understand that in honestly answering, Judge Kavanaugh would not be making a pledge — a pledge would be a violation of judicial independence. In the future, he would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders. But honest discussions of one’s current legal views are entirely proper, and without them confirmation hearings are largely pointless.

Questions on past decisions and analysis are fair game.

Issue 7 – Should One Issue be the Litmus Test of Whether to Approve or Disqualify a Judicial Nominee?

Tough issue. My wish is that no one issue should render a candidate unfit for a judicial post, but I am operating purely from an intellectual standpoint.

As one example, will Senator Paul Rand oppose Kavanaugh solely based on Paul’s strong views against any post-911 government monitoring based on his privacy concerns.

Kavanaugh May Face Stealth Hurdle in Confirmation: Rand Paul

To focus on a more obvious example, I sympathize with friends who consider abortion to be an unparalleled tragedy. However, I also have no problem in understanding the visceral reaction of my female friends of all political persuasions to restrictions on their right to control their body. I am thankful that it is not my job to balance these deeply held concerns.

In a perfect world, which I’ll probably never see, every Justice would go into a case with the attitude that he or she could be the swing vote.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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