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Thune: Kavanaugh Will Interpret the Law, Not Make the Law

“His clerks describe a judge who takes the weight of his responsibility seriously. A judge who is committed to reaching the right decision in every case and who does the hard work necessary to get to that decision.”

July 25, 2018


U.S. Sen. John Thune (R-S.D.) this week discussed the president’s Supreme Court nominee, Judge Brett Kavanaugh, and the support he has received from some of the people who know him best, including his law clerks. While his clerks span the political spectrum, they joined together to write a letter in support of Kavanaugh, who is currently a D.C. circuit court judge.

Thune’s remarks (as prepared for delivery):

“Mr. President, a lot of praise has flowed in for Judge Kavanaugh since his nomination.

“But I think the tribute that has struck me the most is the letter from his law clerks.

“These individuals have worked closely with Judge Kavanaugh and have a special insight into his temperament and philosophy.

“And here’s what they have to say:

“‘It is in his role as a judge on the D.C. Circuit that we know Judge Kavanaugh best. During his time on the D.C. Circuit, Judge Kavanaugh has come to work every day dedicated to engaging in the hard work of judging.

“‘We never once saw him take a shortcut, treat a case as unimportant, or search for an easy answer.  Instead, in each case, large or small, he masters every detail and rereads every precedent. He listens carefully to the views of his colleagues and clerks, even – indeed, especially – when they differ from his own.  He drafts opinions painstakingly, writing and rewriting until he is satisfied each opinion is clear and well-reasoned, and can be understood not only by lawyers but by the parties and the public.

“‘We saw time and again that this work ethic flows from a fundamental humility. Judge Kavanaugh never assumes he knows the answers in advance and never takes for granted that his view of the law will prevail.’

“Those are the words of 34 of Judge Kavanaugh’s law clerks.

“Every one of Judge Kavanaugh’s clerks who was not prohibited by his or her job signed this letter.

“These clerks represent a diverse group.

“They note, and I quote, ‘Our views on politics, on many of the important legal issues faced by the Supreme Court, and on judicial philosophy, are diverse. Our ranks include Republicans, Democrats, and Independents. But we are united in this: our admiration and fondness for Judge Kavanaugh run deep. For each of us … it was a tremendous stroke of luck to work for and be mentored by a person of his strength of character, generosity of spirit, intellectual capacity, and unwavering care for his family, friends, colleagues, and us, his law clerks.’

“This letter is a pretty significant tribute, Mr. President.

“And it confirms what has been clear from the beginning – that Judge Kavanaugh is the type of judge who should sit on the nation’s highest court.

“His clerks describe a judge who takes the weight of his responsibility seriously.

“A judge who is committed to reaching the right decision in every case and who does the hard work necessary to get to that decision.

“A judge who approaches each case with an open mind, looking for what the law says, not the outcome he wants.

“Mr. President, as Chief Justice John Roberts famously said, ‘Judges are like umpires.’

“Their job is to call the balls and strikes, not rewrite the rules of the game.

“As Justice Roberts said, ‘Umpires don't make the rules; they apply them.’

“It is essential that a judge understand this.

“If you’re a judge, your job is to rule based on the law and the Constitution – and nothing else.

“Your job is not to make policy.

“It’s not to revise the law according to your personal feelings or political principles.

“No, your job is to figure out what the law says, and rule accordingly.

“And why is this so important, Mr. President?

“Because the rule of law and equal justice under the law only exist as long as judges rule based on the law.

“Once judges start ruling based on their political opinions or their feelings about what they’d like the law to be, then we’ve replaced the rule of law with the rule of individual judges.

“Mr. President, as the testimony of his clerks and many others makes clear, Judge Kavanaugh understands the role of a judge.

“He understands that his job is to interpret the law, not make the law.

“To rule based on the plain text of the statute, and not his personal opinions or political beliefs.

“In a 2017 speech at Notre Dame Law School, Judge Kavanaugh said, and I quote, ‘I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.’

“I’ll say it again, Mr. President, that’s the kind of judge we want on the Supreme Court.”