I watched nearly all of the confirmation hearings for Supreme Court nominee Brett Kavanaugh. Right away, Senate Judiciary Committee Chairman Chuck Grassley stated clearly that the role of a judge is to rule based on the law regardless of his or her personal view of the outcome.
He also stated that since Supreme Court Justice Ruth Bader Ginsburg’s confirmation hearing in 1993, every nominee has agreed to decline to discuss his or her personal opinion of the “correctness” of any given court precedent. He stated firmly that requesting a judge to do so would essentially be asking for a promise to rule in a certain way in exchange for a confirmation vote, which is both unfair and unethical. With great persistence despite remarkably determined efforts, Kavanaugh honored this standard.
I was struck by how Kavanaugh answered questions related to the various cases and social issues presented to him. He carefully began each response by citing court precedent relevant to the issue. When asked about his decision-making in court cases, he was equally careful to distinguish his personal views from his dedication to judicial independence, following the law as it is written.
This told me exactly what kind of judge he would be, as he had every opportunity to win favor with one side or the other by selectively answering questions. Despite this neutral stance, many senators abjectly refused to recognize the standard in place, often badgering Kavanaugh repeatedly to give his personal opinion. He never once wavered.
What’s Kavanaugh’s Opinion of Obergefell?
One topic that demonstrates senators’ willful defiance of this ground rule and the biased way the media interpreted his answers revolved around LGBT law, specifically same-sex marriage and workplace discrimination law. Sen. Kamala Harris (D-CA) asked, “Can you comment on your personal opinion on whether Obergefell [the case that required governments to grant gay marriage licenses nationwide] was correctly decided? It’s a yes or no. Please.”
Kavanaugh had repeatedly reminded senators that he chose to honor the precedent of previous nominees refusing to give a “thumbs up or down” about any specific case. Instead, he gave what I viewed as a clear response. Kavanaugh replied, “Justice Kennedy wrote, ‘The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.’”
Unsatisfied, Harris asked if he agreed with Kennedy’s words he had quoted. He attempted to reply by stating, “That is the precedent of the Supreme Court agreed with by…”
She interrupted, “Sir, I’m asking your opinion. You’re the nominee right now so it is probative of your ability to serve on the highest court in our land. So I’m asking you a very specific question. Either you’re willing to answer or not. And if you’re not willing to answer it, we can move on. Do you believe Obergefell was correctly decided?” He chose to, again, remind her that as in the cases of previous judges, his personal opinions were simply irrelevant.
What About Firing Gay People?
Sen. Corey Booker (D-NJ) also attempted to obtain a glimpse into the judge’s personal views by asking him a series of morality questions about workplace discrimination. Booker asked if he believed it was wrong to fire someone for being gay. Kavanaugh responded, “Senator, in my workplace I hire people because of their talents and abilities. All Americans…”
Booker interrupted, rephrasing the question to ask if a business had a right to fire someone for being gay. Kavanaugh responded, as had become his custom by this point, that it was inappropriate for him to comment on potential cases he may be involved with, as the issue is currently pending in many cases.
Booker said many gay Americans fear that if Kavanaugh were to be confirmed, their marriages might be nullified. He also argued that many states still allow, or more correctly do not explicitly ban, workplace discrimination against LGBT people.
Despite Booker once again asking for the judge’s personal opinion on the matter, Kavanaugh responded by stating that Congress had the power to make these legal concerns more clear, before being cut off. After a few more pressing questions on how he personally and morally viewed same-sex marriage, Kavanaugh stated firmly, despite Booker’s continued interruptions, “I apply the law, the law of the Supreme Court. The law of the land protects that right as dictated by the Supreme Court.”
Reaffirming Pro-Gay Precedent Wasn’t Enough for Them
Harris and Booker were attempting to obtain a very specific answer from the judge and despite his extremely clear responses, they grew frustrated and hostile. Harris tweeted an article by the LGBT media site The Advocate, titled “Kamala Harris Stumps Brett Kavanaugh with Marriage Equality Question,” in which she commented, “Obergefell v. Hodges legalized same-sex marriage across the country and was one of the great moments in the history of the Supreme Court. Despite repeated questioning, Kavanaugh refused to say it was correctly decided.”
Chad Griffin, president of the LGBT-advocacy Human Rights Campaign, tweeted, “In which Kavanaugh: -Refuses to state his opinion on marriage equality -Refuses to say if non-discrimination protections apply to LGBTQ people -Admits role in Bush admin attempt to ban marriage equality (but docs aren’t public) Thank you @SenBooker!” Kavanaugh had not admitted a role in the Bush administration discussion, however, instead simply stating he was aware of the discussion at the time.
Lambda Legal, the oldest LGBT legal advocacy organization, tweeted about Sen. Chris Coons’ (D-DE) questions, “Senator @ChrisCoons is expertly grilling #Kavanaugh on abortion, contraception, same-sex relationships and #MarriageEquality. Kavanaugh invokes all of the #LGBTQ-related decisions written by his precedent, Justice Kennedy. But, he cannot give his own opinion. Naturally.”
Bringing the point to the very center of the discussion, Eugene Scott, writing in the Washington Post, expressed, “The future is not clear for gay citizens’ ability to share the marriage rights that straight Americans do. Kavanaugh’s non-answer likely reaffirmed the fears of gay Americans and encouraged the conservative Christians who backed Trump with the hope that he would deliver the courts to them.”
If You Don’t Voice Support, You’re Against Us
In all this it seems clear the senators and the media intentionally viewed Kavanaugh’s refusal to discuss his personal opinions as validation of their prejudicial assumption of those opinions. Their standard seemed to be that if Kavanaugh did not explicitly praise a decision, he must therefore deeply oppose it, and would work to overturn it once confirmed. But I view the situation differently.
Not only did Kavanaugh repeatedly express a clear and consistent view of equality under the law for all Americans in judicial philosophy, the Constitution, and his own practice, he explicitly cited Supreme Court precedent that validated this view. At one point, when Harris was repeatedly questioning him on Obergefell, Kavanaugh restated the Justice Kennedy quote on LGBT rights, with intentional emphasis.
Viewed objectively, his message was obvious. He looks to precedent for guidance on legal decision-making and he clearly cited precedent that affirmed everything the senators were demanding of him. They were simply too blinded by prejudice to see it.
Change the Laws, Don’t Manipulate the Courts
As brilliantly argued by Sen. Ben Sasse (R-NE) on the Senate giving power to the Supreme Court, “This transfer of power means people yearn for a place where politics can be done, and when we don’t do a lot of big political debate here, people transfer it to the Supreme Court. And that’s why the Supreme Court is increasingly a substitute political battleground for America.”
The Left has come to depend on the Supreme Court to provide it validation and legal protection. As such, they understandably become overwhelmed with anxiety at any change they feel they have no control over. Unfortunately, the media amplifies and perpetuates this fear. We can see that reflected in the screaming protesters and emotionally passionate lawmakers seemingly unaware of their power to introduce the solutions they believe are so necessary.
Kavanaugh did not profess loyalty to any group, ideology, or cause. He simply confirmed his commitment to being an independent judge who separates himself from his duties under the law. While identity politics advocates interpret this to be a warning sign of opposition, I view it as a sign of neutrality and fairness. That’s all I want in a judge of any kind, especially a Supreme Court justice.
More to the point, everything LGBT advocates celebrate from the court could be handled by the very lawmakers they look to for saving them by voting “No” on Kavanaugh’s confirmation. It is very apparent Kavanaugh feels so strongly on the equality of all Americans that he insisted on stating so multiple times throughout his hearing. I am saddened and frustrated that LGBT advocates and the Democrats prefer dramatic grandstanding over that simple and uncontroversial truth.