With Senate hearings complete, and a vote on Judge Brett Kavanaugh’s nomination to the Supreme Court expected this coming week, a national discussion over the Constitution and the proper purpose and function of the Supreme Court has intensified. This also includes Kavanaugh’s potential place and future decisions in that Court — something to which most on the Left are adverse.

In Kavanaugh, the Left sees a conservative specter with the end goal of shifting national policies and rewriting laws by repealing Roe v. Wade and acting as a protective shield for President Donald Trump. But those on the American Left concerned about a conservative “activist” judge widely miss the mark with Kavanaugh.


As Kavanaugh and others have noted, the Supreme Court may comment or offer suggestions on existing laws in cases, but it cannot rule based on laws that do not exist, and it cannot invent its own laws to act on. Reforms, repeals or replacing laws is a responsibility that rests with the House and the Senate where it is constitutionally placed, and where laws are made through elected representatives of the public.

In matters of unconstitutionality, a law may be declared invalid, but a law cannot be rewritten. Otherwise, there are nine unelected, lifetime-serving rulers and the legislature has its purpose and function undone. (That is not to mention the elected president and his ability to veto legislation.)

That the Court should be thought of in legislative, rather than judicial terms, also underscores the danger of reading and instilling politics into appointments and confirmations. Kavanaugh has said that he does not bring his personal political perspective to the bench when he rules. An overtly and undeniably politically motivated and focused nominee, for one side or the other, should be a cause for concern.

But Kavanaugh has not demonstrated such singular political-mindedness. He has affirmed, again and again, that he is a textualist who adheres to the law. Alexander Hamilton explained in Federalist No. 78, “A constitution is, in fact, and must be regarded by the judges as, a fundamental law.”

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During the hearings, Sen. Lindsay Graham noted that it was seen as acceptable by many on the Left for candidate Hillary Clinton to declare she would only put forward Supreme Court nominees who supported Roe v. Wade as law; but then-candidate Trump’s insistence he would only put forward Supreme Court nominees opposed to Roe v. Wade is a locus for liberal opposition to Kavanaugh now. Kavanaugh’s career and record pale in comparison to what some liberals believe he may or may not do with the law.

And here the danger arises. Political motivation and intent rather than measured, judicious consideration creates the unelected ruling body that the Founding Fathers so desperately sought to avoid. In Federalist No. 78, Hamilton argued that the judiciary should be the weakest branch, that it should render only judgments, and that it, of all branches, would “always be the least dangerous to the political rights of the Constitution” because it would “be least in a capacity to annoy or injure” those rights — including the ability to elect or vote out lawmakers. An activist court which invents or rewrites laws undermines such stability and guarantees. But Kavanaugh is in line with the Founding Fathers.

This makes him unappealing to most on the Left because those individuals see the Supreme Court as the ultimate political hammer wielded by activists, one which in their mind trumps the president, Congress, and every other executive and legislative body in the land. Kavanaugh’s traditionalism is at odds with that. Again, as Hamilton revealed in the Federalist Papers, political activism is not the purpose of the Supreme Court. And as Sen. Benjamin Sasse noted during Kavanaugh’s hearings, this is simply the stuff of “Schoolhouse Rock.”

In spite of all of this, there were members of the Left prepared to oppose Kavanaugh’s nomination before his hearings; and there were members of the Left who were prepared to oppose anyone the president nominated, no matter who it was, before the nomination was even made. This is not judicial open-mindedness, but purely political.

Separately, the Judiciary Committee delayed its vote on his nomination until next week, with final votes by the full Senate expected at the end of the month.

Yes, certain Republicans should have allowed a vote on Judge Merrick Garland under President Barack Obama — but to justify opposition to Kavanaugh on this point further underscores the need to keep politics out of the justice system.

There are still some senators who have not (as of this writing) clearly expressed support or opposition to Kavanaugh, ranging from Democrat Sen. Joe Manchin of West Virginia to Republican Sen. Lisa Murkowski of Alaska. While it is probable that Kavanaugh’s confirmation or rejection will occur largely along party lines, that a few on either side may cross aisles is a strong possibility.

At the same time, some on the Left have ratcheted up efforts to ensure a rejection of Kavanaugh — from Sen. Cory Booker’s disingenuous “I am Spartacus” moment to a current crowdfunding effort in Maine that has raised over $1 million to give to Sen. Susan Collins’s Democratic opponent should she vote “yes” for Kavanaugh (which the senator aptly noted is essentially a bribe). There is also the constantly repeated line that Kavanaugh should be rejected because he will “kill Roe v. Wade,” which is extraordinarily ironic.

If those on the Left are as committed as they claim to be in favor of the Constitution in the midst of their #Resistance movement against the president, wouldn’t it only make sense to support a constructionist, textualist judge who actually believes in, and rules according to the Constitution? Adhering to the Constitution means safeguarding rights and liberty.

Or is their judicial opposition only political after all?