Op-Ed: Brett Kavanaugh likened Supreme Court justices to ‘umpires.’ That’s nonsense and he knows it

Once again a Supreme Court nominee has insulted the intelligence of the American public by likening justices to “umpires.” Echoing the language used by John Roberts at his confirmation hearings in 2005, Brett Kavanaugh declared Tuesday before the Senate: “A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.… I don’t decide cases based on personal or policy preferences.”

But justices are not umpires at all. Umpires apply rules and have little leeway in determining how those rules should be interpreted. The Supreme Court creates the rules and justices have enormous discretion how to interpret the law. By likening himself to an umpire, Kavanaugh was contending that his views don’t matter at all. That is false.

How a justice votes is very much a result of his or her ideology and views. Justices Clarence Thomas and Sonia Sotomayor disagree in virtually every major case entirely because of their differing ideologies. This is not new; Supreme Court decisions have always been a product of those sitting on the bench.

The Constitution was written — intentionally — in broad, open-ended language that rarely provides guidance for issues that must be resolved by the Supreme Court. Justices are obligated to give meaning to ambiguous words written almost 230 years ago. What is “speech”? For example, should spending money in an election campaign be regarded as a form of speech? This is the issue at the heart of whether campaign spending limits violate the 1st Amendment. The text of the Constitution cannot answer the question of whether spending money is speech. Nor did the founders think about this in 1789, when campaign spending did not exist as it does today.

One of the most controversial parts of the Constitution, the 2nd Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Is this a right to have guns only for militia service or does it create a more general right of individuals to possess firearms? On this question, the court split 5-4 exactly along ideological lines in District of Columbia vs. Heller in 2008 and declared unconstitutional a 32-year-old ordinance prohibiting ownership or possession of handguns. The conservative majority chose to read the 2nd Amendment as a right of individuals to possess handguns in their homes for the sake of security, while the liberals argued that the 2nd Amendment is a right to have guns solely for the purpose of militia service. Either is a plausible reading of the text supportable by the amendment’s history.

No constitutional right is absolute and constitutional cases constantly involve balancing of the government’s interest against the claim of a right. A justice’s own ideology and life experiences inevitably determine how he or she strikes the balance.

To pick an easy example, the 4th Amendment prohibits “unreasonable” searches and arrests. But what is reasonable or unreasonable cannot be answered from the text of the Constitution or any original understanding. When the court considered whether the police can take a DNA sample from a person arrested for a serious crime to see if it matches DNA from an unsolved crime in a police database, the court explicitly balanced the benefit to law enforcement of obtaining the information against the intrusion to privacy and ruled, 5-4, in favor of the government.

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Under constitutional law, the court frequently weighs whether the government has a “compelling” or “important” or a “legitimate” interest. For example, in cases involving affirmative action in college admissions, the central question is whether diversity in the classroom is a compelling government interest. In deciding the constitutionality of laws prohibiting same-sex marriage, the court had to decide, at a minimum, whether they serve a legitimate interest. But whether something is a “compelling” or an “important” or a “legitimate” government interest demands a value choice. It never can be answered by the text of the Constitution or its original understanding.

President Trump, senators and the public all know that justices are not like umpires, which is exactly why the confirmation of Supreme Court nominees are so contentious. Kavanaugh obviously knows this, too, and should not have presented such a misleading sense of constitutional law to the Senate Judiciary Committee or the American public.

Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor of law at UC Berkeley School of Law.

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