Former Clerk Says Supreme Court Nominee Values Legal Precedent

Alaskans experienced a rare opportunity to hear directly from a former clerk of current U.S. Supreme Court Nominee Brett Kavanaugh regarding what Americans could expect to see from him in terms of legal interruption should the U.S. Senate confirm the man who is President Trump’s second nominee to the nation’s highest court.

Justin Walker, now an assistant professor of law at the University of Louisville Brandeis School of Law located in Louisville, Kentucky, clerked for Kavanaugh in 2010 to 2011 at the U.S. Court of Appeals for the District of Columbia Circuit, where Kavanaugh has presided for the past 12 years.

Monday evening, July 30, Walker addressed a gathering of The Federalist Society for Law and Public Policy Studies—a national organization of conservative and libertarian-leaning legal professionals seeking reform within the American legal system.

It was an introspective group asking Walker a variety of legal beagle type questions ranging from Kavanaugh’s opinion regarding state’s rights, what reasons would prompt him to overturn long-held precedents and the judge’s view of judicial activism some legal analysts say has increased.

“Judge Kavanaugh looks at every case and as he does, he does not say to himself, ‘which defendant do I like or which plaintiffs do I like?’” Walker said. “What he does say is ‘what does the law say?’ and if the Constitution leads one way, he goes where the Constitution goes and if the statute leads one way, he goes where the statute leads. I worked with him for one year and I can only tell you what I witnessed, which was someone who every day took seriously his role to be an independent arbitrator of the law without passion or prevue toward anyone.”

Kavanaugh, who was nominated by Trump on July 9 to replace Justice Anthony Kennedy whom announced his summer 2018 retirement on June 27, is being slammed in the national media as being an opponent of abortion rights as outlined in Roe v. Wade and that he is yet another Washington insider.

“I can tell you that is the furthest from the truth regarding Judge Kavanaugh,” Walker said. “Yes, he has made a choice to serve the public for almost every year of his professional career, but this idea that he is a D.C. insider is nonsense. Whatever the opposite of a Georgetown cocktail elite is, he is that opposite.”

As an example of what a down-to-earth kind of guy he believes Kavanaugh to be, Walker mentioned a mid-July “Washington Post” article in which the bartender of The Chevy Chase Lounge on Connecticut Avenue in the residential area known as Chevy Chase Village in Montgomery County, Maryland, at which the judge stops for Budweiser and a burger after coaching his daughter’s basketball games told reporters he didn’t even know the middle age guy named Brett that talked sports was a federal judge.

“The bartender found out watching TV that Brett was a Supreme Court nominee,” Walker explained.

Throughout his hour-plus talk and question and answer session, Walker frequently mentioned the number of times Kavanaugh’s lower court decisions and legal opinions have been upheld by the U.S. Supreme Court.

A federal judge serving anywhere from 20, 30 or 40 years might be lucky to get one or two vindications by the Supreme Court, Walker said.

“Judge Kavanaugh 13,” Walker said. And he added that of those 13, the bulk deal with rather meaty legal issues including separation of powers among the three branches of government, and overregulation and overreach on the part of federal regulatory agencies including the Environmental Protection Agency.

While Walker was clear to state that he could not speak for Kavanaugh regarding exactly how he would rule on specific subjects, Walker did tell those gathered Monday evening that if they want to understand Kavanaugh’s thoughts on various legal topics they should look at his past 12 years on the federal appellate court.

Weighty issues such as limits on presidential power, the legitimacy of the Mueller investigation – the ongoing federal Special Counsel investigation of the Russian government’s efforts to impact the outcome of the 2016 U.S. presidential election – and citizens’ rights to privacy even when being investigated from alleged crime are all topics Kavanaugh has either ruled on or crafted leading legal opinion on, Walker said, and not necessarily in the direction popular opinion would sway, but instead, ruling in the law’s favor.

Rumors by Kavanaugh’s opponents that he is eager to overturn precedents he doesn’t like are false, Walker said.

“It is a myth,” Walker said. “In reality, Judge Kavanaugh has written – along with 12 other distinguished judges – what is the leading legal (guideline) regarding respect for precedent.”

Walker said Kavanaugh’s top two reasons for even considering the overturn of a legal precedent are these two questions: Was the precedent established inappropriately and has the general public come to rely upon the impact of that precedent?

Despite support for Kavanaugh from conservative circles, his Senate confirmation hearing is expected to contain lengthy challenges from leading Democratic senators including Senate Minority Leader Chuck Schumer of New York who immediately stated in response to Trump’s nomination announcement that the individual replacing Kennedy, “has an obligation—a serious and solemn obligation—to share their personal views” on a range of contentious legal issues.

For Democrats, those contentious legal issues include protecting the Affordable Care Act, ensuring abortion rights, and immigration issues.

At this time, one of Alaska’s federal senators has pledged support for Kavanaugh’s nomination.

After meeting with Kavanaugh on July 12, Sen. Dan Sullivan, R-Alaska, announced he will back Kavanaugh through the confirmation process.

“He is someone who will interpret the law and Constitution as written, he holds a healthy skepticism regarding the expansive power of federal agencies, he is a strong protector of the Second Amendment, and he has the values, temperament and humility I believe Alaskans will value on the Supreme Court,” Sullivan said via press statement released from his office.

Sen. Lisa Murkowski, R-Alaska, has yet to publicly announce a yes or no regarding Kavanaugh.

Murkowski regularly votes in favor of pro-choice and in the past has been unwilling to restrict reproductive rights as outlined in Roe v Wade.

“I don't have an impression on Judge Kavanaugh as to where he may fall on the issue of abortion, as well as the many other issues that I will weigh as we move forward with this process,” Murkowski has stated. “So again, that's why I think all of us need to be doing our due diligence.”

Not that his opinion gets counted in the confirmation process as members of the federal House of Representatives do not vote in regards to nominees to the U.S. Supreme Court, but Rep. Don Young, R-Alaska, has expressed his support for Kavanaugh.

“I think it’s a good nomination,” Young has told television reporters. “I've always believed the President is like the captain of the ship, and he has the right to appoint,” Young said. “If they're qualified to sail on the ship, he has the right to do so,” referring to Kavanaugh having already been nominated by then Pres. George W. Bush in 2006 to the appellate court on which he currently sits.

Kavanaugh is registered Republican.

Monday night’s event wasn’t all serious legal discussion.

In response to two “fun” questions posed by this reporter, Walker showed that both he and Kavanaugh have an informal side.

“You know, I don’t ever remember him talking about any of the legal shows on television, although he did talk a lot about a documentary show that followed the behind-the-scenes action of a professional sports team,” Walker said.

Also, when asked about the dress code for under the robes, Walker’s humorous and intentionally flippant response gave the crowd a chuckle.

“They don’t wear anything under the robes,” he said with a smile that resembled a stand-up comedian much more than an attorney. After the laughter died down, he clarified, “I was just joking.”
Watch Walker’s presentation at Amy Armstrong’s namesake Facebook account.


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