Before becoming President Donald Trump’s U.S. Supreme Court nominee, Brett Kavanaugh revealed his thoughts about what makes a great judge in a 2016 letter recommending Justice Britt Grant for the Georgia Supreme Court.
Grant clerked for Kavanaugh at the U.S. Court of Appeals for the D.C. Circuit. The two also worked together in President George W. Bush’s White House. And they both practiced at Kirkland & Ellis in Washington.
Kavanaugh wrote a three-page, single-spaced letter to the Judicial Nominating Commission explaining why he thought Grant would make a “spectacular justice.”
In light of the president’s announcement Monday night of Kavanahugh’s nomination—not to mention Trump’s pending nomination of Grant to the U.S. Court of Appeals for the Eleventh Circuit—that letter bears revisiting. Following are excerpts in which Kavanaugh explains in his own words seven attributes of a great justice.
“The most difficult cases can require judges to patiently unpack a difficult record, or statutory scheme, or body of precedents. … Intellectual horsepower is a necessary, albeit far from sufficient, characteristic of a great appellate judge.”
Range of legal experience
“Few lawyers ever amass this range of experiences at the federal and state level, in public service and private practice, in court and in advising top clients on critical matters.”
Superb writing ability
“This critical consideration is too often overlooked when appellate judges are appointed around the country. One of the most important duties of an appellate judge is to write opinions. If an appellate judge cannot write well, then the quality of the court’s opinions will suffer. And poor opinions are a recipe for confusion in the law, for dismay in the trial and other courts that must follow the appellate court’s decisions, and for unhappy litigants who do not understand the court’s outcome or reasoning. Rubber stamping drafts written by staff lawyers or clerks is not good enough for a judge to be a great or even passable judge. The judge must personally work through the writing process.”
‘Work harder than ever’
“This consideration also gets overlooked, but in my opinion should be explicitly evaluated when appellate judges are appointed. Put simply, some judges work harder than others. That matters. The citizens deserve and should expect hard work from their public servants, especially their judges. A judgeship is not a cushy reward after years spent doing other legal jobs well. Rather, a judgeship is an extraordinary responsibility that should be reserved for those who are going to work harder than ever and give it their all for as long as they hold the position.”
Don’t act ‘like a jerk’
“I cannot overstate how important it is to appoint appellate judges who have collegial personalities and who will work well with others and command the respect and admiration of those who appear before them. All of us are familiar with appellate judges who are overly aggressive with counsel, who do not treat staff with respect, who clash with their colleagues, who are sarcastic and caustic in their dealings with bench and bar. This is a serious problem, in my view, and has numerous lamentable effects on our legal system and legal culture. A judge often serves for many years, if not decades. The tenure is too long and the position too important to tolerate a judge who acts like a jerk. But once someone is appointed, it is often too late to ever do anything about it. Again, it is not easy to smoke out a candidate’s personality in a process like this. Everyone tends to be on best behavior when being considered for a judgeship. But in my view it is important to inquire into the candidate’s professional histories to find out how they deal with others in the workplace.”
Understands real-world impact of decisions
“A good judge must have a keen understanding of the range of human experiences. That can matter a great deal when resolving certain types of legal disputes, particularly common-law type cases where the question so often is whether some action was reasonable under the circumstances. Put simply, Ms. Grant is the neighbor you want next door, the friend you want when you have something to discuss, the colleague you want when you have a tough issue to crack, and the fair and open minded judge you want when your life, liberty or property is on the line.”
Respects the role of a judge
“Judging is not the same as policymaking by the political branches. … The role of the courts is far narrower than the role of legislators or executive branch officials. … The role of a judge is to decide each case on the facts of the law and to decide like cases alike. At the same time, Ms. Grant has the fortitude, backbone and experience to hold firm when the Judiciary is under pressure to bend inappropriately to public passion or the winds of the moment.”