Observations On The Nomination Of Judge Brett Kavanaugh

There has been a lot of arm-chair scouts out there who were picking their favorite person to serve on the United States Supreme Court. I am a little annoyed with prediction that a certain nominee will be “more conservative than another nominee.” What is amazing is that some of these opinions are coming from persons who relied solely on the opinions of other people. It also appears that the most passionately opinionated people are not even lawyers.

I made it clear early on that I was not going to choose my favorite horse in the race. I did so for a couple of reasons. I will explain both of my reasons below.

First, some on the right were over analyzing the fact that one or more of the potential nominees for Supreme Court Justice had clerked for a certain federal justice. These pundits question the ideology of an applicant because they clerked for a jurist whose constitutional ideology was more liberal than the pundit’s own ideology. These pundits gloss over the fact that it is extremely difficult to get into law school and it is even more difficult to get to be a law clerk for a state district court judge much less than a federal court judge. Further, these pundits fail to recognize that the experience that an applicant brings with a clerkship is invaluable to a judicial career. Experience is important. I clerked for a year for a very aggressive plaintiff's attorney. I did not agree with the position that my boss took on politics or some of his clientele. I did the work for the boss that he needed. Yet, in one year, I learned more about case prep and client prep than I did in any other class that I had in law school.

Second, many on the right and left will be analyzing every opinion and every other writing of the nominee. While I think reading those opinions and writings is useful, it may not be that helpful in determining how they will rule in a case. Justice Sandra Day O’Connor’s decisions while on the United States Supreme Court surprised many on the right and the left. Likewise, Chief Justice John Roberts has surprised many of us with his opinions.

My conclusion is that picking a Supreme Court Justice is like scouting a baseball recruit for MLB. You look to see if they have the heart for and the mechanics of the game. But, as in this scene from Moneyball, Brad Pitt’s character Billy Beane explains to one of the A’s scouts, “[y]ou don’t have a crystal ball. You can’t look at a kid and predict his future any more than I can.” Pitts’ character’s point was that the scout was misleading everyone (including the MLB prospect) when the scout said that he “knew” this MLB prospect was major league material. I suggest this is the same for almost all of those who “know” that Judge Brett Kavanaugh is or is not ready for a seat on the United States Supreme Court. You really do not know what kind of Supreme Court Justice that Judge Brett Kavanaugh will make.

Nelson Spear is a 1990 graduate of Washburn School of Law. He has worked as an Assistant District Attorney in Lea County, New Mexico from 1990 - 1999, Board Member of the New Mexico Gaming Control Board from 1999 - 2002, Assistant United States Attorney from 2003 - 2005, and as an oil gas attorney from 2006 – Present. He has tried 75 felony trials to a jury and has argued motions before Federal Circuit Court of Appeals Judges.

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