On July 9, 2018, President Donald Trump nominated Judge Brett Kavanaugh, a sitting judge of the United States Court of Appeals for the District of Columbia Circuit, to become the next Associate Justice of the Supreme Court of the United States. Judge Kavanaugh was nominated to fill the seat vacated by Justice Anthony Kennedy who was retiring after more than 30 years on the Court. Notwithstanding all the controversy surrounding the confirmation process, Judge Kavanaugh was approved by the Senate on October 6, 2018.
Judge Kavanaugh’s nomination to become an Associate Justice of the Supreme Court was controversial from the beginning. The main reason for the opposition of Judge Kavanaugh was because he was replacing Justice Kennedy who was considered to be the swing vote on many controversial cases before the Court, such as abortion rights, same-sex marriage, and affirmative action. One question in the mind of many people was: “Could a Justice Kavanaugh Be Impartial?”
In her article, “The Impartiality Paradox,” Melissa E. Loewenstem (2003: 501) said: “once a President appoints a judge to sit on the Supreme Court, the public earmarks the Justice as an incarnation of impartiality, neutrality, and trustworthiness.” The same principles of impartiality and neutrality were required of judges in the Old Testament. In this post I want to review what the Old Testament required from judges and see if the same principles apply to Justice Kavanaugh.
The proper administration of justice in Israel was a paramount concern of Israelite laws. Justice for all was one of the foremost subjects which claimed the attention of the leaders of the nation. In order to dispense legal rights, the leaders of Israel created a system of justice which addressed the needs of society and met the concerns of the people.
Among the innovations of Israelite laws were the importance of evidence in conducting trials, the principles upon which the decisions of the court should be rendered, both in civil and criminal cases, the use of witnesses, and the institution of trial by jury. In addition, Israelite laws established courts at different levels and with different responsibilities. The most basic court was the local court where elders presided over local disputes. Their duty was to carry out the administration of justice at the local level in such a way that every citizen would recognize the decision as just.
A system of courts and judges with judicial authority was instituted in order to settle legal disputes between individuals and tribes. In situations where decisions were too difficult for the local judges, the case was referred to a high court, where legal experts would reconsider the implications of the case and pass judgment.
The persons appointed to be judges in Israel were taken from among the people. Judges were required to be well known for their intellectual abilities, their good reputation, and their fitness for the position to which they were chosen. Judges were required to be individuals who loved truth, persons of integrity, possessing wisdom and understanding.
The selection of qualified candidates was necessary in order to insure the impartiality of the court and the prompt administration of justice to the parties involved in a dispute. The ideal was to make sure that justice was carried out and disputes were settled according to laws derived from their constitutional document, the covenant between God and the nation.
Specific laws were enacted to govern the conduct of the judges. Among the many laws governing the work of judges were those related to impartiality in judgment. Several laws were enacted to deal with the issue of impartiality:
“Don’t go along with the crowd in doing evil and don’t fudge your testimony in a case just to please the crowd. And just because someone is poor, don’t show favoritism in a dispute” (Exodus 23:1-3).
“Don’t pervert justice. Don’t show favoritism to either the poor or the great. Judge on the basis of what is right” (Leviticus 19:15).
“Listen carefully to complaints and accusations between your fellow Israelites. Judge fairly between each person” (Deuteronomy 1:16).
“Appoint judges . . . in all the towns. They are to judge the people fairly and honestly” (Deuteronomy 16:18).
In all these regulations, judges are commanded to give their decisions without partiality. As arbitrators in litigations between fellow citizens, judges must do no wrong to either party of the dispute but, to the utmost of their abilities, they must judge a case with equity, taking into consideration only the merits of the case and not the character of the people involved in the case. Thus, for the proper administration of justice to be carried out equally, a decision of the court must never be perverted, either in favoritism of the poor or in partiality of the rich.
Whenever a judicial decision was rendered in favor of a rich person, the decision should be on the merits of the case, not because the person was famous or powerful. Whenever a decision was given in favor of the poor, the decision should be awarded to him as his right, as something to which he was legally entitled to receive. In all cases, judges are morally obliged by law to be impartial in their judgment.
To be impartial, judges must hear the case, hear both sides of the argument, and then be just and impartial in their decision. Impartial judges are an indispensable condition of the stability and prosperity of a nation. Without impartial judges and without an impartial administration of justice it becomes impossible to maintain the rights of individuals and to develop a society ordered by constitutional laws.
There is no doubt that most Western law codes are highly influenced by Judeo-Christian legal traditions. President Andrew Jackson, in a speech given on June 8, 1845, said that “the Bible is the rock on which our Republic rests.” The Declaration of Independence contains expressions such as “Supreme Judge,” “unalienable rights” and “self-evident truths.” This language reflects the Judeo-Christians tradition that is the foundation of the laws of our country.
Judges in American courts have the responsibility to treat all citizens with fairness, impartiality, and equality under the law. In order to preserve and protect equal justice under the law, judges must promote the public’s trust and confidence in our system of justice.
Article III of the Constitution of the United States declares that the judicial power of the United States is vested in the Supreme Court. The Constitution also declares that the President, with the “advice and consent” of the Senate shall nominate candidates to serves as judges in the Supreme Court.
In 2005, when Associate Justice Sandra Day O’Connor retired, in order to fulfill his constitutional responsibility, President George W. Bush nominated U. S. Court of Appeals Judge Samuel A. Alito Jr. to become the new Justice of the Supreme Court. In selecting Judge Alito, the President selected a man with a distinguished record, a man known by his judicial temperament and his personal integrity.
At the time of his nomination to the Court, Judge Alito said: “Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans and to do these things with care and with restraint, always keeping in mind the limited role the courts play in our constitutional system.” His words describe the same role judges played in Israelite society.
Critics of Judge Alito criticized his view on the role that judges and the court play in the administration of justice under our Constitution. Among his critics, the most important issue was Roe v. Wade and the rights of abortion for women. Another issue raised by his opponents was Alito’s views on human rights.
At the time Judge Alto was nominated, Barack Obama, then a Senator from Illinois, said: “For me, the main criterion is how well does Judge Alito understand the historical role of the Supreme Court as telling the majority ‘no,’ from making sure the Court serves its historic role of protecting the powerless and the vulnerable, and not just looking after the powerful. And I think that question is not clear. In some cases, I agree with some of his opinions. There are other cases where it appears that he has favored the advantaged, and that’s my criteria.”
Obama’s view is contrary to the role established by judges both in the Constitution and other law codes. When judges become partial in their judgment, the whole system of justice is in danger. The fundamental concern of judges should be the fair application of the law. Reverse prejudice becomes a threat to our system of justice because judges fail to provide equality to all before the law.
The same principle applies to Judge Kavanaugh. Now that Judge Kavanaugh is an Associate Justice of the Supreme Court, he must recognize the importance of impartiality in judicial decisions. Chief Justice John Roberts recently emphasized the impartiality of the Court as its members interpret the Constitution. The Chief Justice said:“We do not speak for the people, but we speak for the Constitution. Our role is very clear: We are to interpret the laws and Constitution of the United States and ensure that the political branches act within them.”
The United States is a nation where each citizen should be treated with respect. Knowing what is at stake, it is imperative that we uphold the Constitution and make sure that its laws are applied equally to all citizens. That is the basic role of a Justice of the Supreme Court, regardless of party affiliation.
Emeritus Professor of Old Testament
Northern Baptist Seminary
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Melissa E. Loewenstem, “The Impartiality Paradox,” Yale Law & Policy Review 21 (2003): 501-525.