Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
The Courts Are Not Where We Make Policy
July 17, 2018
I’d like to take a moment to discuss the nomination of Judge Kavanaugh to serve as an Associate Justice on the Supreme Court. I think the debate surrounding his confirmation has highlighted the deep divide between how conservatives view the role of the Judiciary versus how liberals do.
The reason liberal outside groups oppose Judge Kavanaugh’s nomination is simple: They don’t think he will promote their preferred policy outcomes while on the bench.
Well, I can’t think of a better example that demonstrates how differently liberals and conservatives view the role of the Judiciary.
Let me tell you how I—and most Americans—view the role of the Judiciary. Under our Constitution, we have three branches of government. Congress makes the laws, the President enforces them, and the Judiciary interprets and applies them. The Judiciary’s role as a coequal and independent branch of government is significant, but it’s confined.
As Alexander Hamilton explained in Federalist Number 78, the Judiciary “may truly be said to have neither force nor will, but merely judgment.” In other words, the Judiciary must stay in its lane, calling balls and strikes as it sees them, without trying to encroach on Congress’s authority to make policy through the legislative process.
When the Supreme Court goes beyond its mandate and enters the policymaking arena, it threatens the structure of our Constitution. To preserve the Judiciary’s independence, the justices of the Supreme Court are appointed for life. They’re not accountable directly to voters for their decisions. The American people can toss us out of Congress if we make bad policy decisions, but they’re stuck with judges for life.
The benefit of this arrangement is that judges can make decisions according to the law, not based on the whims of political opinion. But the downside is that some judges can see their independence as a green light to override the policy choices of Congress or the states and substitute their own policy preferences. The threat this poses to self-government should be apparent. Instead of the people’s representatives making policy choices, unelected judges who aren’t answerable to the American people make them.
Conservatives believe that judges must rule according to the law as written. In any given case, the law might lead to a liberal political result or it might require a conservative political result. But the judge can’t take that into consideration. The law must be interpreted regardless of whether the judge agrees with the political results of the decision. A good judge will, oftentimes, personally disagree with the result he or she reaches.
Many liberals view the role of the Judiciary differently. They believe that an independent Judiciary unaccountable to the American people is a convenient way to achieve policy outcomes they can’t achieve through the democratic process. This is why, in nearly every case before the Supreme Court, it’s very predictable how the four Democrat-appointed justices will rule. In most cases, they’ll reach the result that achieves liberal political goals. How else can you explain the fact that the Democrat-appointed justices have voted to strike down every restriction on abortion—a right that appears nowhere in the Constitution—but would uphold restrictions on political speech and gun rights? After all, these rights are expressly covered by the First and Second Amendments.
The unfortunate reality is that liberal jurisprudence is thinly veiled liberal policymaking. And I’m being generous when I say “thinly veiled.”
This explains many of the left-wing attacks on Judge Kavanaugh. Judge Kavanaugh has a track record of putting aside any policy preferences and ruling according to the law as written. I think this is a virtue. Indeed, it is necessary for judges to do this.
But liberal outside groups and their Senate allies see this as a threat. They want judges who will impose their policy preferences—disguised as law of course. They want politicians hiding under their judges’ robes. This is why many of the attacks on Judge Kavanaugh are based on policy outcomes. Left-wing groups are spending millions of dollars to convince the American people that Judge Kavanaugh is hostile to their preferred policies.
This effort will be unsuccessful. What the American people see in Judge Kavanaugh is a judge who will rule according to the law, not for or against various policies. Nine Ivy League justices and their cadre of mostly Ivy League law clerks aren’t equipped to replace Congress’s exclusive lawmaking function.
One attack I’ve seen on Judge Kavanaugh is that he represents a threat to the Affordable Care Act’s protection of people with pre-existing conditions. But the same five justices who upheld the constitutionality of the Affordable Care Act twice are still on the court. Justice Kennedy, who Judge Kavanaugh would replace, voted to strike down the ACA. In other words, even assuming you could predict Judge Kavanaugh’s vote, his vote would not change the outcome.
Moreover, Judge Kavanaugh had two opportunities to strike down the ACA on the DC Circuit, but he did not do so. The left-wing groups might want to put away their crystal balls. Even the New York Times fact-checker threw cold water on this argument. It labeled the left-wing’s attacks “exaggerated.”
Another attack on Judge Kavanaugh is that he’s hostile to abortion rights. But this attack misrepresents Judge Kavanaugh’s record. In a recent DC Circuit decision, Judge Kavanaugh acknowledged that the court must decide the case based on Roe v. Wade and subsequent abortion decisions. He applied the precedent as precedent requires judges to do.
We hear the same fearmongering over abortion every time there is a Supreme Court vacancy. Yet Roe v. Wade is still the law of the land. Justices have a way of surprising us. There’s no way to predict how a justice will rule in a particular case. Who could have predicted that Justice Scalia, for example, would uphold a ban on flag-burning? Just this term, we saw how justices appointed by Republican presidents can reach decisions with liberal political results because that’s what the law requires.
In Sessions v. Dimaya, Justice Gorsuch sided with an immigrant who challenged a statute under which he would have been deported as unconstitutionally vague. In Carpenter v. United States, Chief Justice Roberts held that police were required to obtain a warrant before searching cell phone location data.
It’s sad, but not surprising, that left-wing groups and their Senate allies oppose Judge Kavanaugh’s confirmation based on policy concerns rather than legal ones. Luckily a majority of Americans—and a majority of senators—believe that the mark of a good judge is someone who interprets the law as written, regardless of whether the result is liberal or conservative or anything in between. As Justice Gorsuch said, judges wear robes, not capes.
In his twelve years on the DC Circuit, Judge Kavanaugh has a clear track record of setting aside any policy preferences and ruling according to the law. Criticizing the results of certain decisions says more about the critics than about Judge Kavanaugh.
We’re already seeing an attempt at “Borking” Judge Kavanaugh. I was in the Senate when liberal groups and some of my colleagues smeared the highly respected Judge Bork after he was nominated for the Supreme Court. Judge Bork was very candid with the Senate Judiciary Committee, and he was unfairly attacked for it. We’re seeing liberal groups and their Senate allies try to replicate this shameful episode.
But since the nomination of Justice Ginsburg to the Supreme Court, the tradition has been for nominees to, in her words, give “no hints, no forecasts, no previews” of how he or she will address certain cases. The Minority Leader in a press conference last year affirmed that “there is a grand tradition that I support that you can’t ask” a judicial nominee “about a specific case that might come before them.”
I expect Judge Kavanaugh will follow the Ginsburg Rule. I implore my colleagues not to try to extract assurances about how he will rule in specific cases in exchange for a confirmation vote. The only question that matters is does Judge Kavanaugh strive to apply the law as written, regardless of his personal views? The answer appears to be yes.