Democrats are right. Judge Brett Kavanaugh does have a jaw-dropping record with women — but it is one that should lead to women’s support, not opposition.
As a father (and basketball coach) of two lovely daughters, he takes his role in advocating for women seriously. Astoundingly, he has hired more women as law clerks than men. Eighty-four percent of those women have gone on to clerk at the Supreme Court. And he is the only D.C. Circuit judge to have ever hired four women in the same year for a clerkship.
Judge Kavanaugh does not hire ideologically — he hires women in record number regardless of their points of view. His former female law clerks, coming from diverse ideological persuasions, enthusiastically support Judge Kavanaugh’s nomination, not in spite of his position on women, but because of his advocacy for women.
Eighteen of those former law clerks wrote of the challenges that women still face in the workplace. Among those challenges, they wrote, “women do not enjoy a representative share of prestigious clerkships or high-profile legal positions.” But Kavanaugh, they wrote, has worked tirelessly “to remedy those disparities”; he’s “been one of the strongest advocates in the federal judiciary for women lawyers”; and he’s made the legal profession “fairer and more equal.”
The erroneous statements of women’s rights organizations — that Kavanaugh poses a danger to the rights of women to make their own decisions about health care, abortion, and workplace protections — are based on a misguided view of the Supreme Court. The role of the Supreme Court is to uphold our laws, not to enforce the policy preferences of any particular group — women included. That is what democracy is for.
The Constitution separates the powers of the federal government into three spheres. The legislative branch is given the power to make federal law; the executive branch to enforce federal law; and the judiciary to interpret federal law. The Founders believed that this structural division was critical to preserving individual liberty — including for women.
Recent decades have seen a push to politicize the court. But looking to the Supreme Court to effect particular political changes subverts the role of the legislature and the people. It is dangerous to look to an unelected, life-tenured group of individuals to enact one’s preferred policies. That group might disagree or change its mind, and there is no recourse to check its decisions. Federal judges were tenured for life in order to insulate them from political pressures, not to make them kings.
The rhetoric from the left also shortchanges the very real power women have to effect change. It diminishes the right that women before us worked so hard to obtain — the all-important right to vote and to participate in our government.
In Seneca Falls, New York, 1848, Elizabeth Cady Stanton read her Declarations of Sentiments and Resolutions. Among them, “Resolved, That it is the duty of the women of this country to secure to themselves their sacred right to the elective franchise.” Yet it took nearly three-quarters of a century for the states to pass the 19th Amendment.
On November 2, 1920, more than 8 million women across the United States voted for the very first time. They undertook the right and responsibility of participating in our governance, a right which too many women in too many countries still do not possess.
As glass ceiling after glass ceiling explodes, in part due to the mentorship of individuals like Judge Kavanaugh, women have more of a voice than ever before. In fact, if we just look at the numbers, women have an advantage at the voting box. They participate in our representative government in larger numbers than men. Women are both more likely to be registered to vote and to go to the polls.
The number of women voting has exceeded the number of men voting in every presidential election since 1964 (and in every off-year election since 1986). In the 2016 general election, for example, 73.7 percent of women reported voting, as opposed to 63.8 percent of men.
It took a constitutional amendment to secure the right of women to vote. But that right is only effective when the Supreme Court stays within its constitutionally limited role of interpreting the laws that Congress writes. When the Court oversteps its bounds and steps into the political fray, our votes count for less — or sometimes for nothing at all.
On the Left’s view of the Supreme Court, women would be barred from making their own health-care decisions; they would not be able to decide which protections women should have in the workplace or whether they may carry their faith into their workplace. If left-leaning women’s groups were correct about the all-encompassing role of the Supreme Court, women would not be able to decide how they should rear their children, what education should look like in our country, or how many life-impacting decisions should be made by administrative agencies as opposed to the people’s representatives.
Every one of those decisions would be placed in the hands of the federal courts — and ultimately in the hands of nine unelected lawyers who sit on the Supreme Court.
If women are concerned about having an impact on the decisions that affect their lives, picking justices who will limit themselves and the Supreme Court to its constitutional role is the answer — not opposing someone who has been a champion for women for his entire career.
Erin Hawley is a legal fellow at the Independent Women’s Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John Roberts.
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