Brett Kavanaugh: a necessary nonpartisan

Nominee approaches constitution with bipartisan history, rulings reflect balanced law perspective



Michael Salamone, judicial process professor, discusses the political environment present today and how that may affect judicial review processes in the future in Johnson Tower on Thursday.

SAAD NABIL ALI, Evergreen columnist

U.S. Supreme Court has continually grown in power because of flagrant disregard to the limitations of the judiciary. The current climate surrounding Brett Kavanaugh, the D.C. Circuit Court of Appeals Judge and Supreme Court nominee, suggests that he’s only a controversial figure because of bias on both sides of the aisle.

I ask you first to consider what you really know about the Supreme Court and Kavanaugh. You may not realize this, but the power of judicial review and an affinity for partisan politics is probably why you’ve come to take such a strong stance on the current nominee.

Alexander Hamilton, one of our nation’s founding fathers, believed the Supreme Court was the weakest of the federal branches. He asserted that the constitutional limitations on the judiciary were more than adequate to ensure that it remained bound to its obligations.

In Federalist No. 78, he famously states that the judiciary, “may truly be said to have neither force nor will, but merely judgment.”

What Hamilton did not foresee was the unfortunate politicization the Supreme Court would embrace decades later, leading to its unconstitutional growth.

Cue Marbury v. Madison, a landmark Supreme Court case in 1803 where Chief Justice John Marshall formally established the principle of judicial review.

In this case, Marshall argued that the judiciary could not deliver a judgment because of an unconstitutional statute that would increase the power of the judiciary. In doing so, he was able to reason that it was the judiciary’s duty to not only interpret the Constitution but also ensure that the legislature did not seek to alter its meaning.

If refusing to rule on a case because of an act’s unconstitutionality while establishing the unconstitutional power to check the constitutionality of legislative acts sounds like a confusing sleight-of-hand, it’s because it is.

“The whole trickery of what he’s doing there is he’s basically saying, ‘I know [Thomas] Jefferson is going to ignore us no matter what. How do I write an opinion where I get what I want by Jefferson ignoring us?’ ” said Michael Salamone, a WSU judicial process professor. “Now we have a situation where it is highly unlikely that someone in power, even a president, will not follow a Supreme Court ruling.”

This all matters because the court can make laws through opinions while using judicial review to void acts of the legislature as well as executive orders of the president.

Couple this with a belief in an evolving Constitution or a strong voting record that reflects consistent partisan platforms and you get the modern narrative that the Supreme Court behaves as an unelected super-legislature.

In using this to their advantage, senators fashion questions targeting a nominee’s stance on gun rights and Roe v. Wade, a landmark abortion case, to determine where on the political spectrum they lie.

Kavanaugh’s stance on the Second Amendment is fairly certain.

In a 2010 challenge to new gun control legislation in D.C., Kavanaugh suggested that statutes involving arbitrary assault weapon bans were unconstitutional. He argued in his dissenting opinion that without any real distinction between certain types of guns, the statute was an infringement to Second Amendment rights.

If you think this makes him a solid conservative pick, I’d recommend you look to his cases involving reproductive rights.

In Garza v. Hargan, Kavanaugh wrote in his joint dissenting opinion that it may suit a substantial government interest to allow Rochelle Garza, a 17-year-old undocumented immigrant, to receive an abortion. No consideration beyond this extent should be made, however, because her complex situation supersedes any debate about her right to an abortion.

Equally important to this case is that Kavanaugh did not criticize Roe v. Wade for setting a bad precedent.

In other cases, such as Priests for Life v. Department of Health and Human Services, Kavanaugh’s dissenting opinion valued contraceptive rights and respected Supreme Court precedence over religious freedoms.

If you’re still not convinced of Kavanaugh’s impartial ethics, there are other examples where he has not taken the conservative position on key disputes.

In Seven-Sky v. Holder, Kavanaugh was the first-ever to express that the court could not deliver a judgment on the merits of the Affordable Care Act because the judiciary did not have jurisdiction. He reasoned that the individual mandate for not entering into the health insurance marketplace imposed a tax and not a penalty.

If this sounds familiar, it’s because Chief Justice John Roberts used similar logic later in National Federation of Independent Business v. Sebelius to justify the constitutionality of Obamacare. This is why we have it today.

Kavanaugh’s judicial philosophy consistently reflects an application of the law in accordance with its meaning and in concert with prior Supreme Court decisions.

This would make him a textualist, which is not exclusive to conservatism, in the same way, interpreting the Constitution as the Founders intended may be.

But the legislative partisanship would rather perpetuate its own political narrative than ensure that our justices, whoever they are, are beholden to our Constitution.

If you don’t recall a letter alleging Kavanaugh’s sexual misconduct in high school last summer when it reached Democratic senators, it’s because of individuals like California Sen. Dianne Feinstein.

Christine Ford, the accuser, stated in a recent interview with The Washington Post that she had a ‘civic responsibility’ to inform the public of Kavanaugh’s character, even at risk of retaliation.

According to USA Today, “had the letter been leaked in July, the White House could have either tried to blunt the impact or replace the nominee.”

Sen. Feinstein, hoping to seize the opportunity to secure future elections and prolong the nomination vote, waited till the judicial nomination hearings months later to bring forth the allegation.

Her politically-motivated actions truly illustrate the callousness politicians have in dealing with potentially serious sexual assault claims in addition to demonstrating how far politicians will go to serve their own interests.

If you still fear that Kavanaugh will exclusively pursue conservative agendas, you are either refusing to reconcile your own political opinions with the obligations of the Supreme Court or have subscribed to every modern idea of the judiciary that Alexander Hamilton once disavowed.