Why Judge Kavanaugh Is Not Qualified to Sit on the Supreme Court

There is no question that Judge Kavanaugh has all the paper credentials one could ask for.  His education and years on the bench clearly make him qualified in that sense for his appointment.

However he is not qualified in terms of the judicial temperament requisite of a judge, especially a justice of the Supreme Court.  The essence of justice, as embodied by the classic symbol of the blindfolded statue of justice holding the scales, is that a judge will decide a case on its merits, free of any bias regarding the particular matter before him.  Will he thus vote with the “liberals” on the court some times and other times with the “conservatives,” depending on the merits of the case?

One way of looking at this question is whether the judge will respect precedent, an extremely important element of judicial stability and impartiality.  Or will he be more of a political judge than a judicial judge?  

In discussing this issue, I certainly am aware that all justices come to the bench with their particular views of the appropriate role of government.  That is inescapable.  And it is true of both the “liberal” and the “conservative” justices.  But within that framework, a judge must be able to decide a case based on its merits, not on some foreordained, ideological view of the world.

From his opinions, it is clear that he, like some of the other current “conservative” justices on the Supreme Court, is not a conservative of the old school.  He does not respect precedent if he disagrees with it and is extremely biased as to how the law should be applied to a case.  

In short, regardless of the facts, he is against government/court intrusion into business matters and the executive branch while he is in favor of government/court intrusion into the lives of individual citizens to enforce his view of morality.  The facts of the case are irrelevant; he is social conservative and ideologically strict.

The justice he replaces, Justice Kennedy, was on the other hand definitely a conservative of the old school.  He was against government/court intrusion whether it was against business interests and executive power or in the private lives of individual citizens.  Thus Justice Kennedy could both vote recently in favor of American Express and Trump’s travel ban but be the lead justice in the decisions to decriminalize homosexuality and approve gay marriage.

The focus of the confirmation hearing should be on Judge Kavanaugh’s judicial temperament, not how well he is respected and his solid paper credentials.  The fact that there are some other justices currently on the Court who do not have the requisite temperament is irrelevant.  Better late than never.