A law professor who clerked for both Supreme Court nominee Brett Kavanaugh and retiring Supreme Court Justice Anthony Kennedy says President Trump made a terrific selection and is confident that Kavanaugh would be a justice who is faithful to the text of the law and not any policy agenda.
Justin Walker teaches at the Brandeis School of Law at the University of Louisville. He clerked for Kavanaugh in 2010-2011 and was thrilled to hear Trump nominate him to the high court.
“He’s impeccably credentialed. He was a great lower court judge. He’s going to bring independence and fairmindedness and brilliance to the job.
“I was also happy for him, my mentor and former boss, someone who has always been unfailingly kind to me, unfailingly supportive to all of his 48 former clerks. Every one of us would say that any time we have a career decision to make, one of the first people we call to ask for advice is Judge Kavanaugh,” said Walker.
Walker says that Kavanaugh is a hard worker, something he saw up close, and that he heard from Justice Kennedy, for whom Kavanaugh clerked years ago.
“The thing he would always mention about Judge Kavanaugh is how hard-working he had been. He would say, ‘Brett was always in his chair when I’d get here in the morning. He was always in his chair at his desk when I’d leave at night. I’d say, ‘Brett, you work too hard. You need to go home.’ But then I’d come back in the morning and he’d be right there in his chair,'” said Walker.
As a result of Kavanaugh’s work ethic, Walker says he really didn’t need his clerks to do a lot of work, but he did include them in robust discussion about the cases.
“He always wanted to know what the law says. What does the text say? I’m quite sure he never asked his clerks, ‘What do you think is the best policy outcome for this case?'” said Walker.
“He wanted us to dig deep with him in terms of trying to figure out the meaning of the law, starting with the text and then going to structure, precedent, history, all the tools a judge with solid legal principles uses in order to try to find the right answer,” said Walker.
And Walker says Kavanaugh leaves his own opinions out of decisions as well.
“I know Judge Kavanaugh believes it’s the job of the judge to say what the law is and not what the law should be. Judges should not be in the business of inventing law that they think would make the world a better place,” said Walker. “He approached every issue without passion or prejudice for any party or any political outcome.”
Walker says Kavanaugh also has deep reverence for judicial precedent, as one can read in the judge’s 1,000-page book “The Law of Judicial Precedents.”
“What I saw in page after page and chapter after chapter is Judge Kavanaugh talking about the importance of respect for judicial precedents and that the virtues of having that respect include keeping the law settled, promoting consistency, promoting predictability and furthering the rule of law.
“That’s not to say there aren’t extraordinary circumstances when a precedent should be overruled,” said Walker, noting critical reversals in history such as Brown v. Board of Education reversing the “separate but equal” logic of Plessy v. Ferguson.
“Only under extraordinary circumstances should a precedent be overrruled. That’s what Judge Kavanaugh says in his book. He says in the book that a change in the court’s personnel should not throw former decisions open to reconsideration,” said Walker.