Some 400 current and former Yale Law students said President Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court represents an existential threat in a recently published open letter. The nomination “presents an emergency – for democratic life, for our safety and freedom, for the future of our country,” they write.

The letter is long on rhetoric, and it errs. It badly misrepresents Kavanaugh’s opinions (one could perhaps forgive first-year law students, but many signatories should know better). A second error is more fundamental and more troubling. The signers view this day as Armageddon, because they believe that the judiciary’s role is to fix every perceived social, economic, and moral ill. Their view of the Constitution reads the representativeness right out of our republic.

Critique Of Judge Kavanaugh’s Rulings

According to these Yalies, Kavanaugh’s decisions are not just wrong but indefensible: “We see in these rulings an intellectually and morally bankrupt ideologue intent on rolling back our rights and the rights of our clients.” So, what are the terrible decisions Judge Kavanaugh has issued that cause so much angst?

For one, Kavanaugh had the audacity to side with charitable groups like the Little Sisters of the Poor in a case involving the Affordable Care Act (“ACA”). The ACA required the participation of faith organizations in the provision of drugs and devices that violated their deeply held religious beliefs. To say Kavanaugh employed “spurious reasoning” in the case rings hollow given that the Supreme Court agreed with him. In Zubik v. Burwell, the court held that the religious exercise of faith organizations must be “accommodate[d]” and suggested that the government find some other way to provide contraceptive coverage rather than burdening a sincerely-held religious belief.

Then there is Kavanaugh’s discomfort with the ever-growing administrative state. The open letter faults his concerns as being rooted in “policy” rather than the law. Hardly. The Administrative Procedure Act itself requires that federal courts “interpret … statutory provisions.” It is difficult to reconcile this statutory command with the Supreme Court’s current practice of deferring to any plausible agency interpretation of a statute. There is also an argument that Article III of the Constitution requires the judiciary to do more than blindly defer to agency interpretations of federal law — one then-Judge Neil Gorsuch recited in the now famous Gutierrez concurrence that has steadily been gaining traction.

Indeed, the justice whom Kavanaugh would replace, Anthony Kennedy, recently called on the Supreme Court to reconsider Chevron deference, precisely because the doctrine causes federal courts to abdicate their role to interpret federal law. (Also, to the extent these agencies are accountable at all, it is to the president, which should worry those concerned so much about presidential power).

The letter also points to the danger that Kavanaugh might restrict that hallmark of constitutional freedom: “sexual liberty.” Enough said.

And there’s the debate about Roe v. Wade. Whatever one’s personal view of abortion, can we at least recognize the irony of touting a woman’s right to choose in the same letter that claims “people will die” if Judge Kavanaugh is confirmed? (Who will die and why is totally unclear.) And to many, the “vulnerable individuals” who most need protecting are the unborn. As even one pro-Roe commentator put it, “One needn’t embrace pro-life views to take the position of those who do seriously.”

The Imperial Judiciary Lives

The open letter makes error after error in its analysis of Kavanaugh’s decisions, but the most disturbing thing is its repudiation of the very notion of a republican form of government. The democracy enshrined in our Constitution divided the (limited) powers of the federal government between three distinct branches. The judiciary was entrusted with the authority and responsibility to interpret the law, not to make the law.

The letter protests that a choice for Kavanaugh is a choice about the meaning of the Constitution and our vision of democracy. That is true enough, but it is the Yale law letter that demonstrates an open hostility to the sort of democracy enshrined in our Constitution. Instead of trusting Americans to govern themselves, instead of representative democracy, the protest letter ascribes to the Court the power to rule.

In the irony of ironies, the open letter complains that Kavanaugh’s confirmation to the Supreme Court bench would result in “a new era of Lochner, with black-robed rulers overriding citizens’ choices.” But the problem with Lochner was judicial activism.

Kavanaugh subscribes to two views that limit judicial activism: textualism, the novel idea that the words Congress writes in a statute matter. And originalism, in his words, the theory that requires judges to “interpret the Constitution as written, informed by history and tradition and precedent.” These twin theories of judicial humility circumscribe the opportunity of a judge to impose her own policy choices through judicial fiat.

One of the merits of a faithful originalist is that she leaves the Constitution’s open questions up to the representative branches. This gives ordinary, everyday Americans a chance to participate in the way they are governed. An activist Court, on the other hand, takes these decisions out of the hands of The People, and places them with a majority of unelected, elite lawyers on the Supreme Court.

The signers’ understanding of representative democracy, however, takes all of the representativeness out of that document. The Court (or a majority of nine elite lawyers) is called upon to be the arbiter of all things, making one wonder whether they just don’t trust America to govern herself.

From that standpoint, the letter puts one in mind of the words of another Yale law alum, Hillary Clinton. Speaking in India, Clinton noted that during the 2016 presidential election she won all of the elite places in the United States, all of the rich places (those that produce the most GDP), all of the “optimistic, diverse, dynamic, moving forward” places. In contrast, those who lived in the middle of the country were racist, sexist, and backwards.

Along with many other current and former Yale law students, I have a more optimistic view of our Republic and believe that Kavanaugh is exceptionally qualified to serve as a Supreme Court justice.