Below the surface of Senate hearings on whether Judge Brett Kavanaugh should be confirmed to the Supreme Court is a tug of war that should be brought to light. It is a battle between a judge’s commitment to follow judicial precedents versus faithfulness to the Constitution itself.
Federal courts tack right and left, as Republican and Democratic presidents appoint their judges. More liberal judges increase federal power and conservative judges restrain it. But when liberal courts take the law to the left, they set precedents that conservative judges feel obligated to follow, even when the decisions were not constitutionally sound.
There is value in precedent—without it the legal system would become unpredictable and unstable. But more important is following the Constitution itself. We need judges who will do both. But we don’t want slaves to precedent—whether or not that precedent is faithful to the Constitution.Read More »