A good judge is more than someone who simply understands the law. The job requires a keen intellect and an ability to appreciate multiple sides of complex issues. It requires the right temperament — a dedication to fairness and a commitment to leaving personal preferences and politics out of the courthouse. And it requires judicial modesty — an understanding that a judge’s job is to interpret and apply the law and the Constitution based on the facts at hand, not to make policy from the bench.
As the Senate Judiciary Committee continues to evaluate Judge Brett Kavanaugh’s fitness for the Supreme Court, these are some of the attributes we will explore.
The best way to determine how a nominee would serve as a justice is to examine how he has served as a judge. Kavanaugh has spent the past 12 years on the powerful U.S. Court of Appeals for the District of Columbia Circuit. During that time, he has written more than 300 opinions and joined hundreds more. These opinions offer ample insight into his legal acumen, temperament and judicial approach.
The committee doesn’t always have the luxury of an expansive judicial record when evaluating nominees. Justice Elena Kagan had no judicial record when she was nominated to the Supreme Court in 2010. The committee had to rely on records from her executive-branch service to gain insight into her legal thinking.
When asked at her confirmation hearing how the Senate should evaluate her given her bare judicial record, Kagan said, “You can certainly look to my tenure as solicitor general and the way I have tried to approach and handle that responsibility.”
Nevertheless, Republicans and Democrats on the committee agreed not to seek records from her time as solicitor general, given their sensitive nature and the fact that disclosure could undermine the candor of internal deliberations.
Today, we have a nominee with an extensive judicial record and legal writings that provide far more insight into his judicial philosophy than any executive-branch record would. On top of that, the Judiciary Committee has requested up to 1 million pages of documents from his time as a government lawyer. All told, the volume of executive-branch documents we review could be more than the last five nominees combined. This is in addition to the more than 17,000 pages of materials that Kavanaugh submitted in response to the most thorough and robust committee questionnaire ever required of a Supreme Court nominee.
But Democratic leaders are arguing that this isn’t enough.
Though many of them have already voiced their opposition to the nominee, they’re demanding to review emails from any White House aide that merely mention Kavanaugh’s name, including records he’s never seen. In my 14 previous Supreme Court confirmations, we’ve never reviewed such material.
Democrats are also demanding to see Kavanaugh’s records as White House staff secretary, pointing to his comments that it was a formative experience. I’m sure skills Kavanaugh sharpened in that post have proven useful on the bench. It required distilling complex material into concise memos for the president, and it required being an honest broker when relaying competing arguments from advisers across the executive branch.
But these documents are not particularly revealing of Kavanaugh’s legal thinking. This is especially true in light of the much more relevant material from his judicial record, his time as an executive-branch lawyer and the questionnaire.
Furthermore, his staff-secretary records also include some of the executive branch’s most sensitive documents. The staff secretary is essentially the president’s inbox and outbox, handling materials prepared for the president by numerous policy advisers across the administration.
If records of internal communications in the solicitor general’s office were too sensitive to share with Congress during Kagan’s nomination, documents from the staff secretary’s office should be even more closely guarded.
Democratic leaders are keen to call for following the same document review for Kavanaugh as we did for Kagan. That means that we don’t get the materials simply mentioning the nominee’s name, and we don’t get records that jeopardize the candor of internal administrative deliberations. That is precisely what my document request accomplishes.
Given the political left’s broad opposition to Kavanaugh, it is clear that their document demands are nothing more than an attempt at a taxpayer-funded fishing expedition. The Democratic leadership’s true goal is to delay the Senate’s work and re-litigate the George W. Bush presidency instead of evaluating Kavanaugh’s credentials.
For my part, I’m going to focus on conducting the most thorough and transparent confirmation process of any Supreme Court nominee to date. I invite my Democratic colleagues to set aside election-year posturing and join me in this process.
Grassley, an Iowa Republican, is chair of the Senate Judiciary Committee.