Kavanaugh Compared Being a ‘Good Judge’ to Being a Fair Umpire in 2016 Lecture: ‘Cannot Act as a Partisan’
Supreme Court nominee Judge Brett Kavanaugh listed 10 factors that make a good judge at a lecture delivered in 2016, comparing one to a fair umpire at a baseball game that “cannot act as a partisan.”
Kavanaugh, a circuit judge on the D.C. Court of Appeals since 2006, expressed admiration for Supreme Court Chief Justice John Roberts’ own comparison of judges to umpires at his confirmation hearing. Roberts was nominated by President George W. Bush in 2005 and confirmed that year.
“At its core, in our separation of powers system, to be an umpire as a judge means to follow the law and not to make or re-make the law—and to be impartial in how we go about doing that,” Kavanaugh said at Catholic University. “That has to be our goal. We can talk about the limits to achieving that goal, that objective. But in a system of even-handed justice, in a system dedicated to the rule of law, that must be our aspiration.”
“First, and most obviously, a good judge, like a good umpire, cannot act as a partisan,” he said. “Judges often come from backgrounds in politics or policy. Indeed, we want judges in our judicial system who have different backgrounds, including in government.”
Noting federal judges can no longer contribute money to political campaigns, Kavanaugh said at the lecture he had decided to no longer vote shortly after becoming a judge.
“It is very important at the outset for a judge who wants to be an umpire to avoid any semblance of that partisanship, of that political background,” Kavanaugh said. “If you are playing the Yankees, you don’t want the umpires to show up wearing pinstripes. So too with judges. That is the first, probably most fundamental thing for a judge who wants to be an umpire.”
Travis Lenker, a former clerk to Kavanaugh from 2007 to 2008, said he “takes the apolitical role of a judge incredibly seriously.”
Kavanaugh also said a “good umpire should not be making up the strike zone as he or she goes along.”
“Judges likewise should not make up the rules as they go along,” he said. “We see this in statutory interpretation, for example. A good judge sticks to the established text and canons of construction that help guide us in interpreting ambiguous text. Justice Antontin Scalia has had a profound influence on statutory interpretation.”
Other tenets Kavanaugh listed as making a good judge included striving for consistency, understanding the judge’s role, having a “strong backbone,” tuning out the noise so as not to favor what’s necessarily more popular, being open-minded, not being a “jerk,” working well with others, and finally, being clear in explaining why you made a decision.
He cautioned near the end of the lecture that judges shouldn’t be viewed as robots, pointing out areas of the law that require discretion.
“There are areas of law where there is judicial discretion, where it is not purely interpretive, it is not just figuring out what the meaning of a term is. And there will probably always be some discretion in some areas in the law,” he said.
President Donald Trump nominated Kavanaugh to fill the seat left empty by the retirement of Justice Anthony Kennedy. Senate Democrats led by Minority Leader Chuck Schumer (D., N.Y.) are hoping to swing some moderate Republican votes against him but to no avail, so far.