Kavanaugh’s Exercise of Discretion
A lawyer who recently argued a case before Trump’s Supreme Court nominee relates what he learned.
Perhaps the best way to tell something about judges is by looking at what they do when they have discretion to act. Their exercise of judgment involves two distinct decisions—when and in what circumstances they have discretion to exercise in the first place, and what they do with that discretion once they think they have it. It’s a reasonably fair generalization to say that liberal judges see more discretion in the law and use it more to ameliorate perceived injustices, while conservatives prefer to avoid the prospect of discretion