On the "Heritage Explains" podcast, expert Thomas Jipping helps us break down what it actually means to be a good judge or a bad judge and why.
MICHELLE CORDERO: It's been announced that Judge Brett Kavanaugh's Supreme Court confirmation hearings will begin on September 4th.
When the day comes, Kavanaugh will answer question after question about his past as a judge, his legal philosophies and his views on the Constitution. These questions and his answers will guide the mainstream media as they paint Kavanaugh as a good or a bad judge, and most Americans will believe them.
But did you know that a survey by Annenberg Constitution Day Civics in 2017 found that 37% of Americans can't name any rights protected by the First Amendment, only 26% can name all three branches of government, 33% can't name any branch of government at all.
A 2016 survey by the American Council of Trustees and Alumni found that 32% can't identify the Supreme Court as a part of the Judicial branch and wait for it ... 10% of college graduates actually believe that Judge Judy is on the Supreme Court.
This week on Heritage Explains, we sat down with Thomas Jipping, the deputy director of Heritage's Edwin Meese Center for Legal and Judicial Studies to break down some of the basics of what it actually means to be a good judge or a bad judge and why. Tom believes that this hearing and all Supreme Court nomination hearings really help to highlight how our government is structured, how the different pieces of it are supposed to work together, and how powerful our government and, more specifically in this case, our judges ought to be.
Tom, thanks for talking with us today. In our design of government, there are two different views on how much power a judge should have. The question is always, should judges interpret the law or should they create it? What's the right view?
THOMAS JIPPING: Well, in thinking back to civics class, the little formula is the Legislative branch makes the law, the Executive branch enforces the law and the Judicial branch interprets the law.
CORDERO: And the legislative branch, meaning Congress ...House and Senate, Judicial branch, meaning the courts, Executive branch meaning the President.
JIPPING: The President. And that's right. And so the laws that we have, who decides what the words of a statute are, who decides what they mean? Well, it's the legislature. It's not judges. Judges have a different job than our legislators do and especially with federal judges, we don't elect them, so it is a very different job that they have. And I think the way the judiciary was designed, it was designed to be fairly modest, to take the law as it is ... They didn't make the law, they can't change the law and they just use it to decide cases and legal disputes and they leave the rest of it to the other branches of government.
The other view is that judges should be very powerful that judges should be able to not only take the law as it is, they can kind of mush together what it means, they can manipulate and kind of move around what the law is supposed to be so that they can make their cases come out the way they want. It's basically either a modest view of what judges do or a very, very powerful view.
CORDERO: Can you give me some examples in which a Supreme Court ruling where the constitution or these laws were muddled or manipulated?
JIPPING: Look at the First Amendment. The First Amendment says, Congress shall make no law abridging the freedom of speech or establishing a religion and that's what the word says and what the establishment of religion is supposed to mean is that the government can't enforce a religion. The government can't force you to believe or to act a certain way with regard to your beliefs. The Supreme Court turned that into something completely different. They took the same words but suddenly we have this, what we call a wall of separation between church and state. This business of, you know, somehow religion can't have anything to do with the government and vice versa, turned it into something completely different. The words didn't change, but boy the meaning sure did. That didn't come from the people, it didn't come from their elected representatives, it came from unelected judges. They're not supposed to have that much power over the Constitution.
CORDERO: What about Judge Kavanaugh? What are his views?
JIPPING: I think Judge Kavanaugh is clearly in the more traditional, more modest view of what judges are supposed to do. If people watched the announcement at the White House on July 9, when President Trump announced Kavanaugh's nomination, they heard Judge Kavanaugh say that he looks at the Constitution as written.
"My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written and a judge must interpret the Constitution as written, informed by history and tradition and precedent." -Brett Kavanaugh
JIPPING: And that little phrase "as written" really identifies what kind of judge he is. He takes the law as it is. He's not going to try to turn it into something else. He's not going to try to pretend that he was elected to change the law. He's just a judge and he takes the law as it is and decides legal disputes. He really sides with the founders of our country and the way they designed our system of government to work. Judges have a modest, really well defined role to play. He intends to do that is, and we'll do that a better than anybody else, but he doesn't believe that judges have more power than they should.
CORDERO: So on the flip side of that, going back to, I think it was 2010, if we look at the confirmation process of Sonia Sotomayor, would we hear the opposite of that? Would we hear her saying that the Constitution is a living, breathing document?
JIPPING: Well, a Supreme Court nominee isn't going to use those buzzwords. I was working for Senator Orrin Hatch at the time on the Judiciary Committee and wrote questions for him during the Sotomayor hearing to try to get at a little bit more specifically what she believes in and as far as the power of judges and what's her view of the Constitution? Justice Sotomayor is clearly on the liberal side of that. She clearly believes that judges have the power to take the Constitution, to make it mean whatever they want so that their are cases come out the way the judge wants. It's really the difference between should the law decide these cases and settle these disputes, or can the judge do that? And I think Judge Kavanaugh believes the law should, liberal judges believe that judges should.
CORDERO: So this is a good point for me to ask you this question. In a recent op-ed, Tom, you wrote that Judge Kavanaugh's nomination specifically has highlighted the relationship between the Judicial and Executive branch. Why is that?
JIPPING: Well, again, as we mentioned about civics class, you know, the government power is divided up into those three branches, but those are three branches also have relationships with each other. The funny thing about Judge Kavanaugh, and I'm sure this will come out during his hearing, you know, liberals don't like President Trump. Everybody knows that. So they're going to try to press Judge Kavanaugh 'cause they want to have him set limits on President Trump, and you know, judges are supposed to keep President Trump from doing what at least liberals don't like. At the same time, liberals love the rest of the Executive branch. They love all those agencies that are in the different departments and all the bureaucrats that are running around producing all of these regulations and these rules. Well, the President is in charge of the Executive branch. You can't separate the chief executive from the Executive branch. Liberals can't have it both ways. They can't say you gotta control the President, but you got to leave your hands off the rest of the Executive branch. I think Judge Kavanaugh sees the two as being related not as being separate and this hearing will be a great opportunity for him to discuss those views.
CORDERO: So basically you're saying that liberals can't call for limits on the President because they don't like him, but then oppose limits on the Executive branch agencies like the CFPB because they do like them. So Tom, in conclusion, Ronald Reagan, Antonin Scalia and our own Ed Meese, they all talk about returning to originalism. And I know this is a loaded question, but I think it's an important way to frame the upcoming hearings. Why is this the right way as opposed to any other judicial philosophy?
JIPPING: Well, our originalism refers to how a judge finds the meaning of the Constitution or statutes. Is it the original meaning or is it meaning that the judge makes up? And when you look at it that way, originalism actually recognizes that our laws have meaning. The alternative to originalism is a Constitution that doesn't mean anything.
