The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have long agreed that judicial philosophy is a relevant qualification for appointment to the judiciary. By "judicial philosophy," I mean the nominee's views of the proper method of interpreting and applying the text of the Constitution, and of the proper role of the judiciary in a constitutional republic. For this reason, in my view, Democrats may justifiably base their opposition to an otherwise "highly qualified" Republican nominee whose judicial philosophy is objectionable. However, it is incumbent upon those who do to so object to identify their own favored judicial philosophy and explain why the philosophy of a nominee is objectionable. This is a burden that Democrats on the Senate Judiciary Committee largely failed even to attempt to meet. In contrast several Republican Senators did ask Brett Kavanaugh about his judicial philosophy--one critically--and elicited interesting responses. A few of Kavanaugh's responses to Democrats were also illuminating.
In a series of posts, I will highlight some of what Judge Kavanaugh said about his judicial philosophy. In this post, I present his views on originalism [with my comments in brackets]. (Day/Part/Time references are to C*SPAN videos)
Opening statement (3:15:54):
My judicial philosophy is straightforward. A judge must be independent. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history, and tradition, and precedent.
Opening statement (3:16:28)
A good judge must be an umpire – a neutral and impartial arbiter who favors no litigant and policy.
Day 2, Part I (12:29):
Being a good judge means paying attention – paying attention to the words that are written. The words of the Constitution, the words of the statutes that are passed by Congress, not doing what I want to do, not deferring when the Executive rewrites the laws that are passed by Congress – respect for the words put into the Constitution itself. That's part of being a good judge, that's part of being independent, that's part of precedent.
Day 2, Part 2 (1:56:18 – in response to Senator Mike Lee re: textualism vs. originalism):
Judging is paying attention to the text of the statute, informed by those canons of construction such as presumption against extraterroriality, presumption of mens rea, presumption against implied repeals […] Originalism, as I see it, means, in essence constitutional textualism, meaning the original public meaning of the constitutional text.
Now, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. So, Justice Kagan, at her confirmation hearing, said we're all originalists now, which was her comment. By that, she meant the precise text of the Constitution matters, and, by that, the original public meaning—of course, informed by history and tradition and precedent. Those matter, as well. There's a different conception that some people used to have of originalism, which was original intent. In other words, what did some people subjectively intend the text to mean, and that has fallen out of the analysis because, for example, let's just take the 14th Amendment's equal protection clause. It says right in the text "equal protection" – equal means equal.
As the Supreme Court said in Strauder, what is that but the law shall be the same for the black and the white – that's Brownv. Board, which focuses on the text. But there were some racist members of Congress who didn't think it should apply in that way to certain aspects of public life. But if you're paying attention to the text, you don't take account of those subjective intentions, nor is it proper as a general proposition to take account of the subjective intentions. They could be evidence in certain cases—the First Amendment, for example—of the meaning of the words.
[…] You don't follow the subjective intention. So, original public meaning originalism—what I have referred to as constitutional textualism, and what Senator Cruz referred to as constitutionalism—I think those are all referring to the same things, which is the words of the Constitution matter. Of course, as I've said repeatedly, you also look at the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meaning by historical practice over time. And then you look at precedent, which is woven into Article III, as I said, in Federalist 78.
[This statement indicates that Kavanaugh is well aware of the modern approach to originalism that has been developed over the past 20 years: Original Public Meaning Originalism, which he was at pains to distinguish from original framers intent originalism--REB]
Senator Lee: "If we stipulate for our purposes today […] that originalism refers to, basically, textualism applied in the constitutional sphere with an eye toward identifying the original public meaning of the constitutional text at issue, you're an originalist?" (1:56:26)
Kavanaugh responds: "That's correct"
Day 2, Part II (2:00:06 – in response to Senator Lee's question on arguments against being a textualist originalist judge):
Article VI of the Constitution says this Constitution shall be the supreme law of the land, and the word law is very important there. It is not a set of aspirational principles. It's law that can be applied in court. And what is the law? The law are the words that were ratified by the People, and therefore can be applied in the courts of the United States. And it says the supreme law. What does it mean by that? It means when you pass a statute that is inconsistent with the Constitution, the supreme law controls, namely, the Constitution controls over a contrary statute, and that's of course also discussed in Federalist 78, as well. […] Again, precedent, historical practice subsequent to the passing of the text—we see that in Establishment Clause cases—the court will often look at the text, what's the historical practice and precedent, which is rooted in Article III. Those things all go into it, but the words and the original public meaning are an important part of constitutional interpretation and have been throughout.
[Here Kavanaugh unapologetically asserts what, in the 20th Century came to be called the power of judicial review, but which Alexander Hamilton, John Marshall and others described as a duty to follow the higher law of the Constitution against mere legislation.--REB]
Day 3, Part II (29:48 – in response to Senator Cruz's question on what it means to be an originalist and why people should care whether a judge is an originalist):
So, by originalist, it's important to be clear because there are different things people hear when they hear the term "originalist." There was an old school of original intent—the subject intentions of the drafters or ratifiers—and that's not really the proper approach, in my view, for similar reasons to the discussion of legislative history of statutes. By originalist, what I've meant is original public meaning, or constitutional textualism is a term I've used, that refers to the same concept, which is to pay attention to the words of the Constitution. The Constitution, as Article VI makes clear, is law. It is not aspirational principles. It is law. It's the supreme law of the land, and, in that sense, it's superior to statutes. But it is law just like statutes are—superior law. The Constitution itself, including the original amendments, was itself a compromise. So, it's law, and it's a compromise reached in Philadelphia during the summer of 1787. And, of course, Madison's notes and the history of that shows all the compromises that were reached – probably the most famous compromise is the compromise that allows for representation according to population in the House, representation according to state in the Senate, the Connecticut compromise, as it's often referred to. It's important for judges not to upset the formal law that's written in the Constitution or to upset the compromises reached either in the original Constitution or in the amendments. Now one key thing to add to that is precedent, which is part of the constitutional interpretation, as well, as Federalist 78 makes clear. And the judicial power clause of Article III also makes clear. So, a system of precedent is built into how judges interpret the Constitution and constitutional cases on an ongoing basis. That's part of the proper mode of constitutional interpretation and an important system of precedent.
[Another assertion of the difference between original public meaning originalism and original framers intent originalism.--REB]
Day 3, Part III (1:56:13 – in response to Senator John Kennedy's question, "Why do we put so much emphasis on the Federalist Papers or, for that matter, the Anti-Federalist Papers, when you're only getting the point of view of one person?"):
We should be careful when we look at the Federalist Papers. It's a great document. Those papers describe the structure of government in magnificent ways, but they were an advocacy piece to try to convince people in the ratifying convention to vote "yes" on the draft Constitution. So sometimes, as with everything else that's an advocacy piece, you have to be careful to make sure that the words control and not necessarily an advocacy piece about the document. And there were lots of statements in ratifying conventions as well. This was a compromise, and not everyone—probably no one—was 100% happy with the final product. Yet they came together. Ben Franklin performed a critical role at the convention in bringing about the spirit of compromise that ultimately allowed them to get over the finish line with George Washington as the presider at the convention. And that compromise is contained in the words of the document. Of course, precedent is critical to how we, today, decide cases, but the original meaning of the words control over any intent of any one person or group of people.
[Actually, Kavanaugh's impromptu summary of his six or more favorite Federalist Papers was very impressive, but I did not reproduce it here.--REB]
"Do you put much stock in Farrand's treatise, compilation, discussion of the records?"
I find them fascinating, the notes of the convention, seeing day-by-day convention, how things changed and how close we were to so many different things, such as proportional representation of the Senate. That was close. A one-term president, that was close. The debate over the Necessary and Proper Clause…some of those things that caused Gary and Randolph and Mason not to sign the final Constitution because they had such profound disagreements with the structure, and were concerned with having a Bill of Rights, which was not part of the original Constitution. So, I enjoy the notes. You learn from them, but again, those help you understand, but they don't control the actual words of the document. So too the Federalist Papers – they help you understand what's going on, and they help you understand the government, but you have to be focused on the words.
A lengthy colloquy between Senator Kennedy and Judge Kavanaugh about natural rights and originalism was sufficiently wide ranging to merit reproducing at length, which I will do in a separate post.