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Picking a Supreme Court Judge is like a Box of Chocolates – So it is with Judge Kavanaugh. “You never know what you’re gonna get.”

On Behalf of | Sep 7, 2018 | Firm News |

As Forrest Gump, said in the 1994 film: “My mom always said life was like a box of chocolates. You never know what you’re gonna get.” Life is a box of chocolates.” The same thing can be said about picking Supreme Court Justices.

Take President Dwight Eisenhower’s appointment of Chief Judge Earl Warren. A noted historian was able to confirm that Eisenhower expressed his regrets in appointing Warren and Justice Brennan describing the appointments as “big mistakes.” A recent magazine article describes how Eisenhower also said something a whole lot worse to Warren himself, who had recently presided over oral arguments in Brown v. Board of Education, while the case was still being considered.

Another illustration is Chief Judge Roberts. Judge Roberts is certainly not a liberal or progressive. But he has been criticized by conservatives for twice voting to uphold the Affordable Care Act incorrectly referred to as “Obama Care.” What Judge Roberts showed with his votes on the ACA is that someone with one ideological view does not necessarily rule against everything that might be considered by his supporters to be contrary to that view. One would hope that the Chief Judge voted as he saw it, without regard to how some people think he ought to have voted as a conservative appointee to the Court. Judge Roberts voted, not as an ideologue or someone in an ivory tower. He voted with an understanding of the importance of the office as Chief Judge of the Supreme Court. One would hope that any Judge would do the same. One would hope that any decent person of any stripe would do the same.

How is this for a non-judicial example — Attorney General Jeff Sessions. President Trump, like President Eisenhower and Chief Judge Earl Warren, said he wished he had not appointed the AG. President Trump said he thought he was loyal. AG Sessions’ response: While I am Attorney General, the actions of the Department of Justice will not be improperly influenced by political considerations.”

So what does all this have to do with Judge Brett Kavanaugh and a box of chocolates. Well, the Judge’s background suggests he will vote as a conservative. He may have questioned Roe v Wade. But does that mean he will for certain vote to overturn that decision? No. Does it make it more likely that he will vote to overturn it. Maybe. But we don’t know. Like Chief Judges Warren and Roberts and Attorney General Sessions, we can and should believe that he will apply the law as he sees it. To use the words of AG Sessions, we should believe that Judge Kavanaugh “will not be improperly influenced by political considerations.”

Judge Merrill Garland, a colleague of Judge Kavanaugh, who is regarded as a moderate should have been appointed to the Supreme Court because he was eminently qualified. The same is true of Judge Kavanaugh. But they are both like the chocolates in Forrest Gump’s box of chocolates. “Yon never know what you’re gonna get.”

Biggest Mistakes, Letter to the Editor from Kim Eisler NY Times, Washing, D.C., July 25, 1997.

“Commander v. Chief” The lessons of Eisenhower’s civil-rights struggle with his chief justice Earl Warren. The Atlantic (April 2018 Issue) by Michael O’Donnell.