Supreme Court justices serve for life or until voluntary retirement, which makes a nominee’s confirmation hearings a weighty occasion. The Senate Judiciary Committee is charged with asking questions and demanding documents that will show whether nominees have the temperament, character, and intellect to be the nation’s final arbiters on law and the Constitution.
Brett Kavanaugh’s confirmation hearings begin Tuesday, and it’s highly doubtful that senators will treat the occasion as they should. They are unlikely to ask Kavanaugh the questions that need asking and likely to ask others that they should not. Some Republicans may abdicate their responsibility to vet Trump’s nominee rigorously, and most Democrats seem likely to turn the hearings into demagogic pro-abortion rallies for the sake of electoral politics.
Republicans and conservatives should have serious questions for Kavanaugh on a few issues. Most basically, they should have him explain, in his own words, his theory of jurisprudence. As a lower court judge, Kavanaugh was guided by precedent. On the Supreme Court, a justice has more leeway and makes a precedent for others to follow.
Some justices, Republicans and Democrats, have used that leeway to legislate unconstitutionally from the bench, by claiming to find previously unidentified “rights” emanating from the penumbras of the Bill of Rights. They set aside constitutional interpretation for bloviation on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
While liberal justices satisfy themselves and their party with social justice speeches, conservative judges are supposed to know their place. They are interpreters of laws created by lawmakers. Interpreting and parsing them isn’t always easy, so a consistent philosophy is needed for any judge who genuinely wishes to be a judge rather than a lawgiver. Justice Antonin Scalia had a thorough and coherent jurisprudence. Neil Gorsuch has a similar, but slightly different one. What is Kavanaugh’s method of interpreting legislative and constitutional language?
Conservatives should also have questions about Kavanaugh’s views. The Fourth Amendment protects citizens against “unreasonable searches and seizures.” As technology advances, conservatives on the court have struggled to figure out what that means. Is it okay for the FBI to get your metadata without a warrant? To track your license plate? To use high-powered listening devices or infrared imaging hardware from the public sidewalk outside your home?
[Brett Kavanaugh: ‘I am a pro-law judge’]
Then there are questions of executive authority. The executive has continuously arrogated power from the legislature. This is dangerous and unconstitutional. Senators should ask Kavanaugh what rules he uses to determine if the executive is actually executing the legislature’s orders or is legislating on its own.
On some of these questions, we may see some incisive and important questions from Democrats. But overall, we’re not optimistic that the minority party will fulfill its constitutional duty. More likely, we’ll see a mix of thespian resistance and orotund support for Roe v. Wade, one of the worst pieces of jurisprudential overreach in the court’s history.
Roe was, by all honest accounts, a travesty. “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible,” wrote liberal legal scholar Edward Lazarus, a former clerk to Justice Harry Blackmun, who wrote the decision. Roe “is not constitutional law and gives almost no sense of an obligation to try to be,” wrote John Hart Ely, another liberal legal scholar.
It is widely agreed among legal experts, pro-choice and pro-life, that Roe was a sloppy and dishonest effort to invent a constitutional right, which makes it all the more irresponsible of Democrats to make it their litmus test for Supreme Court justices. They don’t want skilled judges so much as people who will use a Supreme Court seat to enact the liberal social legislation that lacks popular support and cannot pass through Congress.
This abortion extremism may not matter much, now that Sens. Mitch McConnell and Harry Reid have abolished filibusters for judicial nominees. If Republicans are unanimous, they can confirm Kavanaugh, 50-49. That leaves Democrats to use these hearings as theater, and they undoubtedly step keenly into the electoral floodlights.
Instead of asking questions about legal reasoning and interpretive method, Democrats will cherry-pick rulings by Kavanaugh in which the “little guy” lost, and rant about President Trump, in order to rally donors and their electoral base ahead of the midterm elections.
