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Tuesday, July 10, 2018 1:40 pm

Young: How does a judicial nominee decide?

BRIAN FRANCISCO | The Journal Gazette

U.S. Sen. Todd Young said Tuesday he doesn't want to know what Supreme Court nominee Brett Kavanaugh thinks about abortion and gay rights in general.

"I want a judge that applies the law to the facts of a given case as opposed to coming up with sweeping statements about particular policy issues," Young, R-Ind., said in a conference call with news media.

President Donald Trump's nomination of Kavanaugh, a federal appellate judge, to replace retiring Supreme Court Justice Anthony Kennedy will require Senate confirmation. Young had said he hoped Trump would choose "a faithful constitionalist" when Kennedy announced his retirement in late June.

Young said Tuesday "the real threshold question" he has for any judicial nominee is "how does this person make up their mind when someone brings a particular case before them? Are they applying the Constitution and the laws as written or instead, as is popularly stated, are they legislating from the bench? The former is what I think is needed in a federal judge."

A reporter asked Young about a nominee's legal interpretation of abortion and gay rights, noting the Constitution mentions neither.

"These are political issues, and we don't want to politicize this process. They are policy issues. And it's not the job for the nominee to answer speculative questions about cases that aren't before them," said Young, a lawyer before being elected to the U.S. House in 2010 and the Senate in 2016.

"Instead it's the job for a judge to reveal why they made particular decisions, how they made particular decisions and how they'll make those decisions in the future," he said.

Kavanaugh did have a role in a high-profile abortion case: He dissented from a 2017 decision by the District of Columbia Court of Appeals that allowed an undocumented immigrant teenager to obtain an abortion. 

Young said he and his staff will review Kavanaugh's legal decisions, writings and speeches. 

"By my initial conversations with individuals and by the limited things I've read thus far, I do believe he's an originalist," Young said. He said Kavanaugh "earned that reputation" as a Harvard Law School professor and federal judge.

"He's had over a dozen of his decisions that were supported by the Supreme Court of the United States," Young said. "That speaks to his rigor, that speaks to his talents and his reputation, but I still have more to learn ... with respect to his analytical approach to cases.

"If the commentary on Judge Kavanaugh has been superficial, if in fact he is a person who makes decisions based on political biases or personal preferences as opposed to objectively applying the law as written to particular cases, then I won't vote for him," Young said.

Many conservative groups – Club for Growth, Heritage Action, Americans for Prosperity and Judicial Crisis Network among them – have endorsed Kavanaugh. Many progressive groups – including the NAACP, the Center for American Progress, MoveOn and the Democratic National Committee – have opposed the nomination.