Testimony of Akhil Reed Amar —Text - United States Senate Committee ...

Testimony of Akhil Reed Amar¡ªText

Testimony Before the United States Senate Committee on the Judiciary

on the Nomination of Brett Kavanaugh to the United States Supreme Court

September 7, 2018

By Akhil Reed Amar

Thank you, Mr. Chair. My name is Akhil Reed Amar. I am the Sterling Professor of

Law and Political Science at Yale University, where I specialize in constitutional law. 1 I have

previously testified before this committee on seven occasions; it is always a high honor and a

solemn responsibility to appear here. 2 Here are my top ten points:

1. Brett Kavanaugh is the best candidate on the horizon.

The Supreme Court¡¯s biggest job is to interpret and apply the Constitution. Kavanaugh

has studied the Constitution with more care, consistency, range, scholarliness, and

thoughtfulness than any other sitting Republican federal judge under age 60. He is the best

choice from the long list of 25 potential nominees publicly circulated by President Trump. 3 I say

this as a constitutional scholar who voted for Hillary Clinton and strongly supported every

Supreme Court nomination by Democratic Presidents in my adult lifetime.

2. Originalism is wise and nonpartisan.

Studying the Constitution requires diligence and intelligence¡ªespecially for those, like

Kavanaugh, who are ¡°originalists,¡± paying special heed to what the Constitution¡¯s words

originally meant when adopted. I too am an originalist. In prioritizing the Constitution¡¯s text,

history, and structure to discern its principles and to distill its wisdom, we originalists are

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Testimony of Akhil Reed Amar¡ªText

following in the footsteps of George Washington, Alexander Hamilton, James Madison, John

Marshall, Joseph Story, and Abraham Lincoln, among others.

Originalism is neither partisan nor outlandish. 4 The most important originalist of the last

century was a towering liberal Democratic Senator-turned-Justice, Hugo Black, the driving

intellectual force of the Warren Court, who insisted on taking seriously the Constitution¡¯s words

and spirit guaranteeing free speech, racial equality, religious equality, the right to vote, the right

to counsel, and much more. Among today¡¯s scholars, the originalist cited most often by the

Supreme Court is also a self-described liberal and a registered Democrat¡ªyours truly. 5

The best originalists heed not just the Founders¡¯ vision but also the vision underlying its

amendments¡ªespecially the transformative Reconstruction Amendments and Woman Suffrage

Amendment. I believe that Justice Kavanaugh will be in this tradition. 6 On various vital

issues¡ªvoting rights, governmental immunities, congressional power to enforce the

Reconstruction Amendments¡ªJustice Kavanaugh¡¯s constitutional views may well be better for

liberals than were Justice Kennedy¡¯s.

3. Kavanaugh¡¯s writings reflect proper respect for tradition and precedent.

Originalists start with the Constitution¡¯s text, history and structure, but almost always

need to consult other constitutional sources such as tradition and precedent. Harmonizing these

different constitutional sources requires great legal acumen. Kavanaugh¡¯s record shows that he is

adept at harmonization. 7

4. Kavanaugh¡¯s views on executive power have strong constitutional foundations.

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Testimony of Akhil Reed Amar¡ªText

Many of Kavanaugh¡¯s views about the executive branch are quite standard. 8 On several

other executive-branch topics, Kavanaugh¡¯s views are not yet conventional wisdom but are

nevertheless sound, and indeed, align well with testimony I offered to this Committee in 1998

and 2017. 9

5. The best basis for assessing would-be Justice Kavanaugh is the track record of Judge

Kavanaugh.

This judicial track record is more proximate and relevant than Kavanaugh¡¯s pre-judicial

life. 10 As a judge, Kavanaugh has revealingly identified Justice Robert Jackson as a role

model¡ªa Justice who, once on the Court, famously repudiated some of his own earlier

exuberant expressions of executive power as an executive official working closely with the

president. 11

6. Kavanaugh would work well with his new colleagues.

Americans generally and with good reason view today¡¯s Court more favorably than

today¡¯s Congress and Presidency. The current justices are outstanding lawyers who do loads of

close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots

of time pondering constitutional law; and spend little time posturing for cameras, dialing for

dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today¡¯s

President and Congress say the same? 12

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Testimony of Akhil Reed Amar¡ªText

I predict that Kavanaugh¡ªa studious and open-minded conservative who likes listening

to and engaging with moderates and liberals¡ªwill be a pro-intellectual and anti-polarizing force

on the Court. 13

7. Judicial nominees should not make substantive promises about how they will rule on

specific legal issues; nor should they make recusal promises that closely approximate

substantive promises.

8. Senators may properly oppose a judicial nominee simply because they disagree with a

nominee¡¯s general constitutional philosophy or likely constitutional votes on the bench.

9. The current Senate confirmation process is flawed and should be changed for future

vacancies.

For more on these three Advice and Consent process points, see Appendix D.

10. Back to Point 1: Responsible naysayers must become yaysayers of a sort; they must

specifically name better nominees realistically on the horizon. If not Brett, who?

Distinguished Republicans: Kavanaugh is your team¡¯s brightest judicial star. Rejoice!

Distinguished Democrats: Don¡¯t be mad; be smart, and be careful what you wish for.

Our party controls neither the White House nor the Senate. If you torpedo Kavanaugh, you¡¯ll

likely end up with someone worse¡ªless brilliant, less constitutionally knowledgeable, less

studious, less open-minded, less good for America. 14

Thank you, Mr. Chair.

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Testimony of Akhil Reed Amar¡ªAppendix A (Bio)

Appendix A: Akhil Reed Amar Bio

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, where he

teaches constitutional law in both Yale College and Yale Law School. After graduating from

Yale College, summa cum laude, in 1980 and from Yale Law School in 1984, and clerking for

then Judge (now Justice) Stephen Breyer, Amar joined the Yale faculty in 1985 at the age of 26.

His work has won awards from both the American Bar Association and the Federalist Society,

and he has been cited by Supreme Court justices across the spectrum in more than three dozen

cases¡ªtops in his generation. He regularly testifies before Congress at the invitation of both

parties; and in surveys of judicial citations and/or scholarly citations, he invariably ranks among

America¡¯s five most-cited mid-career legal scholars. He is a member of the American Academy

of Arts and Sciences and a recipient of the American Bar Foundation¡¯s Outstanding Scholar

Award. In 2008 he received the DeVane Medal¡ªYale¡¯s highest award for teaching excellence.

He has written widely for popular publications, including The New York Times, The Washington

Post, The Wall Street Journal, Time, and The Atlantic. He was an informal consultant to the

popular TV show, The West Wing, and his constitutional scholarship has been showcased on The

Colbert Report, Tucker Carlson Tonight, and Constitution USA with Peter Sagal. He is the

author of dozens of law review articles and several books, including The Constitution and

Criminal Procedure (1997), The Bill of Rights (1998¡ªwinner of the Yale University Press

Governors¡¯ Award), America¡¯s Constitution (2005¡ªwinner of the ABA¡¯s Silver Gavel Award),

America¡¯s Unwritten Constitution (2012¡ªnamed one of the year¡¯s 100 best nonfiction books by

The Washington Post), The Law of the Land (2015), and The Constitution Today (2016¡ªnamed

one of the year¡¯s top ten nonfiction books by Time magazine). In 2017 he received the Howard

Lamar Award for outstanding service to Yale alumni. He is Yale¡¯s only currently active

professor to have won the University¡¯s unofficial triple crown¡ªthe Sterling Chair for

scholarship, the DeVane Medal for teaching, and the Lamar Award for alumni service.

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