February 19, 2020

Hysteria Over Judicial Nominee Is Unfounded

President Donald Trump has made his Supreme Court pick: Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals.

This pick has led Democrats to bouts of near-apoplexy. According to Democrats, Kavanaugh represents a harbinger of death and destruction. Of course, Democrats would have said the same about any candidate nominated by Trump. The Democrats’ official Twitter account issued a dire warning: “A vote for Kavanaugh would be a vote to rip health care from American families and deny women their right to make their own health care choices.” The Women’s March issued a statement “in response to Donald Trump’s nomination of XX.” Naturally, that statement suggested that XX’s nomination would represent a “death sentence for thousands of women in the United States.” Protesters at the Supreme Court began chanting against an unnamed nominee before Trump even picked Kavanaugh publicly.

Here’s the truth: Kavanaugh is a textualist judge who will adhere to the Constitution. But he’s also a gradualist. The chances of Kavanaugh and Chief Justice John Roberts voting to overturn Roe v. Wade are slim to none. It’s far more likely that the two of them form a new minimalist center to the court, gradually paring back overreaching Supreme Court decisions rather than destroying them wholesale. After all, Kavanaugh is the same judge who crafted the original logic stating that Obamacare was a tax rather than a fine — the same logic Roberts would use to uphold Obamacare against constitutional challenge.

But the left’s hysteria over Kavanaugh’s selection tells us a lot about what it expects from the Supreme Court: complete adherence to a Democratic political platform. For decades, we’ve heard that Republicans ought not use litmus tests to determine judges; for decades, we’ve heard that Democrats ought to apply open litmus tests to judges. In the view of the left, the Supreme Court isn’t the “least dangerous branch,” as in Alexander Hamilton’s memorable Federalist No. 78 phrase — it’s the most powerful moral oligarchy, establishing favored rights from a marble-gilded building in Washington,  D.C., with the power of lifetime appointment to back its decisions. 

America was not built on the backs of unelected people in black robes.

Undergirding the left’s fear of a Supreme Court that abides by constitutional text is a deep dislike of the Constitution itself, combined with a fear of Americans voting on crucial issues. The Constitution is, by its very nature, a conservative document: It enumerates only limited powers of the government and enshrines rights that cannot be breached by legislatures. The left would prefer a nearly unlimited government, with only a few rights protected from legislative overreach — and those rights it does wish to see protected aren’t articulated in the Constitution. Thus, conservatives view the Second Amendment as a fundamental right spelled out in the Constitution but search in vain for a Constitutional right to abortion; leftists prefer to relegate the Second Amendment into the ashbin of history but cherish the unstated and groundless right to abortion.

But leftist logic makes a mockery of the role of the judiciary itself. Nobody would want a judge to rewrite a contract in order to reach the judge’s favored conclusion — judges are there to judge. Yet the left wants judges to rewrite the Constitution regularly and to trump popular legislation in the process. Roe v. Wade must be protected under the “emanations and penumbras” of the Constitution, but a religious baker must be forced by the government to bake that cake in violation of First Amendment protections of freedom of religion.

The founders conceived of the judicial branch as a mere shield against violations of the Constitution, not as a sword on behalf of political outcomes. Hamilton wrote: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Indeed, Hamilton continued, should the Supreme Court become a super-legislature, it should be dissolved.

America was not built on the backs of unelected people in black robes. Those people were granted a specific task. And a return to their delegated power would be a welcome relief for a country that too often looks to its supposed moral superiors for guidance on issues best left to the American people.

Ben Shapiro is a best-selling author and editor-in-chief at The Daily Wire.