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Donald Trump

What Trump’s pick for the US Supreme Court should know about the spirit of the law

PUBLISHED : Monday, 16 July, 2018, 9:02pm
UPDATED : Monday, 16 July, 2018, 9:01pm

While all judges begin the process with consideration of the legislative statute applicable to the case, textualists like Judge Brett Kavanaugh (“POLITICO: Kavanaugh’s four hurdles to the Supreme Court”, July 11), President Donald Trump’s nominee for the US Supreme Court, stick with legislative intent revealed by the text in rendering a decision.

Problems arise when legislative intent is not clearly revealed, imprecise language sometimes being favoured in order to finesse the passage of contentious laws. Non-textualists loosen the statutory reins somewhat, the better to accommodate evolving social mores or personal preferences.

Grounding this looser approach in law sometimes depends on the ability to spot emanations from constitutional and legislative imprecisions and the penumbras they spawn (“What does Donald Trump’s pick for Supreme Court mean for abortion rights in US?”, July 10).

Watch: Trump introduces Brett Kavanaugh as his nominee

This particular skill, found almost exclusively among non-textualists, makes the process more malleable than sticking with dry text, accommodates imprecise legislative language rather easily and facilitates opinion writing. Feelings, after all, are far more utilitarian in this context than facts.

In sum, judging is more silly putty than precise carpentry.

Paul Bloustein, Ohio