Judges do make law.

Let me presume as certainly no more than a sort of legal paraprofessional ( 20 years a prison law librarian and instructor to inmates in basic legal research but lacking a law degree) to hold forth on the issue of judges making law.  It is of course a central issue in the confirmation process for Judge Kavanaugh  for the U.S. Supreme Court. By the way,  I am 100% in favor of the elevation of this fine jurist to SCOTUS.

There has been much exposition lately of the idea that judges should not make law.  But it is firmly and beneficially in our legal tradition that, usually at the appellate level where issues of legal construction (interpretation) dominate over the issues of fact which are customarily decided in primary trial courts, that judges DO make law. When this power is exercised with full recognition of its terrible importance and a determination to proceed advisedly,  it is a good thing.

First, because it is a legacy of the blessed, though tortured history of our mother country, England, the civilization most productive of humane and democratic institutions, certainly in the "West" and arguably in the world. I say this while freely acknowledging and admiring Islamic law's intolerance for criminality and the long practiced Chinese dependence upon highly educated officials' personal and incidental interpretation of justice case by case.  Both systems may well be best suited to the societies which embrace or embraced them but they are not in our tradition.

American law is a child of the English synthesis of "common law" (judge made law),  statutes promulgated by historically increasingly democratic bodies of  legislators (Parliament in Britain, Congress and state legislatures in America) and  rules having the force of law, made to enforce statutes and Executive will by subordinates of  the Executive branch (administrative law) (eg. IRS or state motor vehicle dept's).  In America, accordingly, when state and federal appellate level judges render decisions, they make law: it may  be in the authoritative interpretation of a single word  (eg. "viable" in abortion law or "militia" in Constitutional law) ) or in far more extensive explanation of federal or state statutes or in landmark construction of Constitutional amendments themselves, such as to whom the overall protection of the Second Amendment is extended, as it was brilliantly construed by majority spokesman Justice Scalia in the landmark Heller case which established the right to bear arms as being guaranteed to each and every U.S. citizen.

The concept of precedent, for  which, at least until the '60's, the legal profession  expected its members to pay close and often decisive attention, is much discussed now. It embraces the conviction that past decisions, especially those subsequently much cited and affirmed , provide very credible guidance in making present decisions (and hence, law). But the religious devotion to precedent trumpeted by the left in its castigation of Judge Kavanaugh is disingenuous in at least two ways: the left blithely ignores the landmark precedents set for gun rights in the recent Heller and McDonald Supreme Court decisions in its expressed contempt for the decisions (Hillary in 2016) and in its continuing campaign to abrogate this liberty enshrined in the Bill of Rights. Too, it knows that Judge Kavanaugh will strengthen a majority on the court  which demonstrates caution and restraint in the use of its power to write new, far reaching law.  The  prospective permanent reestablishment of this principle on the court would doom the leftist dream of unfettered social engineering. The courts are all they have; the real America will never elect a Congress content with the unrestrained killing of unborn babies and Van Jones will never be elected President.  

The multitudinous  and anarchic baby boomer  generation which blithely enabled attack on seemingly all American verities ,  generated the rise to influence in the '60's of modes of legal thought which maintained that all American judicial construction , though represented as the product of scrupulous examination of past decisions on cases involving analogous circumstances , was in reality simply a reflection of the Justices' personal values, reflecting in the main, the predominant contemporary standards in  the economic, political , social and legal spheres . In addition, it was maintained, such decisions simply provided ruling elites with sanctimonious covers.  Why not then, such leftist thinkers maintained, reject dry and intellectual adherence to outmoded wisdom and apply contemporary, revolutionary '60's standards of justice to current legal issues?  "Why, it was  what past jurists had done !"   Precedent and jurisdiction (the legal principle that a judge or court's construction was law only in those geographical or institutional territories over which it presided) be damned. This school of thought has infected perhaps the majority of U.S. law schools and consequently a massive Hillary Clinton and Barack Obama appointed faction of the Federal judiciary only now being providentially and courageously pared down by President Trump .

 The confirmation of Judge Kavanaugh to the Supreme Court could mark a tipping  point in the 50 year struggle between tradition and recklessness in our legal polity over the proper use of the  law making power appellate judges have. No wonder leftists are beside themselves with frantic dread; their vision of assured totalitarian sway, decreed by compliant courts,  is fading fast.Jack