Perhaps the best way to tell something about judges is by looking at what they do when they have discretion to act. Their exercise of judgment involves two distinct decisions—when and in what circumstances they have discretion to exercise in the first place, and what they do with that discretion once they think they have it. It’s a reasonably fair generalization to say that liberal judges see more discretion in the law and use it more to ameliorate perceived injustices, while conservatives prefer to avoid the prospect of discretion wherever they can, thinking that it gives unelected judges too much power over citizens.
Thousands of words, if not hundreds of thousands, have already been written about President Donald Trump’s Supreme Court nominee, Brett Kavanaugh. Scholars will opine on his judicial philosophy and review his judicial opinions—more than 300 of them—for hints about how he might rule. His classmates, law professors, and colleagues will all be asked their thoughts and his law-review articles will be scrutinized.
But the one way to truly know a judge is to watch him in action. I first met Judge Kavanaugh more than 20 years ago, when we both worked for Independent Counsel Ken Starr, but a more recent experience is more germane. I was appointed by the United States Court of Appeals for the District of Columbia Circuit to represent a client who had lost his case while representing himself in federal district court, and then tried to file an appeal.