Bruce Green co-authored an op-ed for The Hill on President Trump’s Supreme Court nominee, Judge Brett Kavanaugh.
Liberals are understandably upset that President Trump nominated Brett Kavanaugh to fill Anthony Kennedy’s seat on the U.S. Supreme Court. Still pining for Merrick Garland, whose nomination was denied by the Republican-dominated Congress in 2016, politicians and pundits are searching for reasons to disqualify Judge Kavanaugh from the post. Whatever the merit of other objections to the nomination, the argument that Judge Kavanaugh has a conflict of interest because he was nominated by a President who is under criminal investigation cannot hold water.
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The arguments about Judge Kavanaugh and Justice Kennedy betray a much too profound distrust of judging — a belief that the judiciary is no more than another political branch whose members seek to promote their own partisan political preferences and self-interest. On this account, judges either can’t filter out impermissible considerations or don’t bother trying.
It is extremely important – now more than ever – that we not give in to cynicism. Amidst this administration’s attack on the rule of law, the judiciary should be celebrated as a real check on the political branches. Imperfect as they may be, most judges do try to filter out impermissible considerations and they should be respected for that.
This is not to say that politics is irrelevant to judicial decision making. But judging involves more than just political ideology. Judges adhere to processes for thinking through problems that impose a real constraint on them. These processes include ruling out illegitimate considerations such as who nominated you for your job and who might replace you when you retire.