On July 9, President Donald Trump announced his nomination of Judge Brett Kavanaugh to the United States Supreme Court, and in the coming months, the Senate will vote on this important nomination.
As a senator, I take my responsibility to evaluate presidential nominees very seriously. That is especially true for a nominee to our nation’s highest court.
When I consider nominees for the Supreme Court, I don’t look for a person who promises a particular policy outcome or someone who is out to actually create laws. Instead, I look for a person whose record reflects experience, fairness, and respect for the Constitution as it is written.
And that’s the way I believe all of my colleagues should evaluate Supreme Court nominees-based on the individual’s qualifications and whether his or her record demonstrates a commitment to faithfully applying the text of our Constitution and the laws passed by Congress. That’s because the Constitution assigns legislative authority to elected representatives in Congress.
Since the president nominated Judge Kavanaugh, I’ve had the opportunity to meet with him twice. During our second meeting, we had a wide-ranging discussion about his strong commitment to the separation-of-powers system, the court’s responsibility to ensure that federal agencies properly execute laws passed by Congress, and the importance of respecting precedent to promote stability in the law.
West Virginians understand how important it is for government agencies to be confined to their authority under the law. And Judge Kavanaugh has a record of holding agencies accountable.
When President Obama’s Environmental Protection Agency (EPA) refused to properly consider the costs of a major regulation targeting coal-fired power plants, Judge Kavanaugh wrote a dissenting opinion at the D.C. Circuit. The Supreme Court later adopted Judge Kavanaugh’s reasoning, one of 11 separate times the Supreme Court adopted one of his decisions.
During our meetings, we also talked about Judge Kavanaugh’s strong commitment to providing more opportunities for women at the highest levels of the legal field. In fact, more than half of Judge Kavanaugh’s law clerks have been women, and he employed the first all-female class of law clerks in the history of the D.C. Circuit Court.
Judge Kavanaugh also understands the importance of applying the Supreme Court’s precedent and believes it is critical to preserving stability in the law.
Despite his strong record of judicial service and his qualifications, many of my Democrat colleagues have already closed the door on considering Judge Kavanaugh. The day he was nominated, Senate Democratic Leader Chuck Schumer announced he “would fight this nomination with everything I’ve got.”
When the Senate considered Judge Kavanaugh’s nomination to his current position, he sat down with then-West Virginia Democrat Senator Robert C. Byrd. Most West Virginians know the reverence that Senator Byrd had for the text of the Constitution, so it should be no surprise that this was a key focus during their meeting. In fact, the two discussed the importance of the Constitution’s text — specifically, Article 1.
Fast forward a few years to our meeting where Judge Kavanaugh showed me the same well-worn copy of the Constitution that he read with Senator Byrd. Senator Byrd was among the Democrats who voted to confirm Judge Kavanaugh to the D.C. Circuit, and that same bipartisan spirit should take root today.
Much of the opposition to Judge Kavanaugh involves speculation about how he might rule in particular cases. I believe that is misguided for two reasons.
First, recent history has shown the difficulty in predicting how justices will rule in future cases. This is especially true since individuals may serve on the court for decades and will undoubtedly rule on important future questions that few are thinking about today.
Second, the proper role of a justice is to apply the Constitution and the law as it is written — not serve as a robed legislator who seeks to implement his or her own policy preferences.
Judge Kavanaugh has been clear that he shares that judicial philosophy.
In a speech last fall, he said “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is — not what the law should be. Judges are umpires, or at least should always strive to be umpires.”
Because I want a Supreme Court Justice who will impartially apply the Constitution and the law as written, I don’t believe that nominees should be required to promise to rule a certain way on a particular policy question as the price of securing a senator’s confirmation vote. Instead, policy questions should be left to the elected branches of government, and judges should fairly apply legal texts as written.
Accountability to the American people is diminished when unelected judges pursue their own policy goals. If we are truly looking for a fair umpire, then a nominee with Judge Kavanaugh’s strong record of applying the text of the Constitution and the law should be confirmed with overwhelming support.
President Trump made clear during his campaign that he would appoint judges with respect for the Constitution. He kept his commitment to the people of West Virginia and to the people of our country when he nominated Brett Kavanaugh.
I look forward to remaining engaged and supportive of Judge Kavanaugh as the Senate proceeds with his nomination, and I urge my colleagues to set aside partisan rhetoric, stop the political theatrics, and do the same.