The best way to assess potential nominees for the Supreme Court is not to analyze which “side” or “issue position” each nominee has taken, but to see how they approach the law — how they reason and write — in real cases as appellate judges.
By that light, Judge Raymond Kethledge of the 6th Circuit Court of Appeals stands out for showing the most clear, concise, persuasive writing among the five reported “finalists” on President Trump’s list of distinguished constitutional conservatives.
And if Trump wants to expand the list again to include two of his finalists from last year, Judge William Pryor of the 11th Circuit is particularly lucid and Judge Diane Sykes of the 7th Circuit writes brilliantly.
But let’s focus on Kethledge. A review of some of the judicial opinions of other finalists (with the exception of the very good Thomas Hardiman of the 3rd Circuit) left me slightly underwhelmed. Kethledge, on the contrary, wrote in vivid, direct prose, with a constitutionally sound logic, that was a joy to read.
Far too many judges endlessly complicate their decisions, writing massive, almost indecipherable tomes — but not Kethledge. Without leaving questions unanswered, he gets right to the point and makes his point stick.
Consider the case of Wheaton v. McCarthy, in which the state of Ohio, in an attempt to save money, had a policy of not considering a spouse as “family” for purposes of determining eligibility for certain Medicare benefits. One might think this was an easy case — after all, how can a husband or wife not be family? — but the district court had ruled in favor of Ohio.
Kethledge, siding with the low-income beneficiary, made mincemeat of the state’s case.
“Reasonable people might disagree,” he wrote, “as a matter of ordinary usage, as to whether the term ‘family’ [for purposes of public-benefit payments] should include adult children who live with their parents, or a 17 year-old child who does not. … Thus, as a practical matter, it is likely up to the State whether to count those persons as part of the beneficiary’s family. … But that does not mean the term family is ambiguous as applied here. … [For an analogy:] The term ‘planet’ might be ambiguous as applied to Pluto, but is clear as applied to Jupiter.”
He concluded: “So too here: whatever ambiguity the ‘persons living under one roof’ or ‘basic unit of society’ definitions might have at the margins, there is no doubt that, under either definition, a person’s family includes her resident spouse.”
In another case, Barbara Bennett v. State Farm, Kethledge began: “There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief). … But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.”
The question was whether a pedestrian badly injured in an accident, clearly not her own fault, would be able to collect from the insurance company when she ended up on the hood of, rather than inside, the car (a Ford Fusion) that struck her. With devastating simplicity, Kethledge quoted State Farm’s own policy: “[The] policy for the Fusion defines ‘occupying’ as ‘in, on, entering or alighting from.’ And the parties have stipulated that Bennett was on the Fusion — specifically, on its hood — and that she ‘suffered further bodily injuries’ while she was there. Per the policy’s terms, therefore, Bennett was an ‘occupant’ of the vehicle and thus entitled to coverage for those additional injuries.”
In short, if an insurance company itself defines “occupant” as somebody on top of a car, the company cannot say it is ridiculous to argue that somebody on top of the car is an occupant.
Kethledge’s entire decision took just three pages. He didn’t belabor the point. He made the clear case that no amount of linguistic gymnastics can help a company escape from the plain words of a contract the company itself created.
In another dissenting opinion about whether a county government had taken private property without fair compensation, he began sharply: “In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of difference. In some legal precincts that sort of behavior is called theft. But under the Michigan General Property Tax Act, apparently, that behavior is called tax collection.”
Naturally, Kethledge said the victim had a right to bring suit to argue it was theft.
This is good stuff, especially compared to the dense legalese so often prevalent in appeals court decisions. An educated layman can understand what Kethledge writes, and thus better understand and respect the law and the court process. Laws were meant to be understood by reasonably informed nonlawyers. Kethledge, on the Supreme Court, would help it be so.
Quin Hillyer (@QuinHillyer) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a former associate editorial page editor for the Washington Examiner and is the author of Mad Jones, Heretic, a satirical literary novel published in the fall of 2017.
