The tables are about to turn on US Supreme Court nominee Brett Kavanaugh.
On Sept. 4, the judge who has sat in judgment of so many on a federal appeals court will be judged by senators at his confirmation hearing.
It will be an empty ritual, predicts Georgetown University Law Center professor Randy Barnett, a wasted opportunity.
Democrats and Republicans will no doubt pepper Donald Trump’s nominee with questions about controversial cases of the past—most notably, Roe v. Wade, which legalized abortion in 1973—to see how the nominee plans to decide future matters. Kavanaugh has already expended energy reassuring senators. On Aug. 22 Republican senator Susan Collins revealed that when she spoke to the nominee. “We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law.”
Seeking and providing this kind of reassurance is a mistake from Barnett’s perspective. “Both sides [Republican and Democrat] tend to be concerned about the results of cases. And that’s precisely the kind of question nominees cannot and ought not answer.” Barnett tells Quartz. “You don’t want nominees to commit to outcomes. Senators should be asking about clauses of the constitution, not the cases.”
Barnett, who directs the Georgetown Center for the Constitution in Washington, thinks senators in recent decades have adopted a “results-oriented” approach to constitutional law. They have opinions and marshal all arguments to reach a desired result instead of probing the nominee on their judicial philosophy.
This focus on cases, rather than clauses, has turned the hearings into an empty ritual, he says.
A judge’s opinion can change
Obviously, judges have political opinions, too. But their job is not political. Though this is hard for politicians and the people to believe, Barnett contends that opinions can and do change over the course of a case. “Even if judges have opinions, they don’t reflect the arguments and briefings, which means that those opinions aren’t fixed,” he says.
The whole point of the adversarial legal system, where lawyers lay out arguments in light of specific facts, is to ensure that cases aren’t decided according to preconceptions and feelings. Judges can and should be swayed by attorneys’ presentations Barnett says.
He contends that when judges claim that their personal opinions don’t influence their legal determinations, it’s not a purely tactical answer. It’s sincere, too, the truth. Although, he jokes, it’s also a “sincerely tactical” approach.
This nominee is a political animal
It’s tough to make a case for Kavanaugh in particular as apolitical. As Robert O’Harrow Jr. wrote on Aug. 24 in The Washington Post (paywall), “[N]o justice in recent memory has worked as intently as Kavanaugh at the highest levels of the nation’s political machinery.” He served in the White House as George W. Bush’s staff secretary from 2003 to 2006, a bland title that masks the extent of his influence on the president’s policies on the war on terror and warrantless wiretapping, for example.
Before that, Kavanaugh played a role in the last two decades’ major partisan battles, Heather Timmons of Quartz points out. He was the lead author of the salacious Starr Report calling for president Bill Clinton’s impeachment, and represented George W. Bush in the Florida vote recount that awarded the 2000 election to Bush.
Indeed, Kavanugh’s confirmation is especially mired in politics. Democratic senators on the Senate Judiciary Committee have called for Kavanaugh’s confirmation hearings to be postponed based on revelations emerging from the plea deal of Michael Cohen, Trump’s onetime personal attorney, that implicated the president in criminal activity. They say, too, that Kavanaugh’s political jobs have made it impossible to fully review his record, much of which has been withheld based on presidential privilege. In a letter to committee chairman Chuck Grassley, an Iowa Republican, the Democrats suggested meeting “to discuss a bipartisan, fair, and transparent process for moving forward.”
There’s little question Kavanaugh is a political animal with strong party affiliations. What does remain to be seen, however, is whether the nominee has the professional character to consider cases in light of a judicial philosophy and not politics, as he’s repeatedly claimed he’s able to do.
The Kavanaugh philosophy
Questioning Kavanaugh on his judicial philosophy, rather than asking questions about cases, wouldn’t tell senators how he’d decide any particular matter. It would reveal how he thinks about the law, how he sees the role of a judge, and the extent to which the nominee has a fully formed, articulated theory of interpretation, a method that goes beyond political opinions and preferences and is instead based on legal principles.
Kavanaugh has not, until recently, been vociferous about his judicial philosophy, Barnett says, perhaps because he worried that calling himself an “originalist” was “too freighted.” The professor was concerned initially about the nominee, who didn’t seem to have a strong legal theory. Now having studied him extensively, Barnett is satisfied Kavanaugh is committed to constitutional interpretation based on the text above all else. In other words, the nominee is an originalist.
Simply put, an originalist is someone who first looks to the constitution itself for guidance, unlike “living constitutionalists” who also consider historical tradition, pragmatic concerns, consistency, and other factors. “The problem with the multiple modality approach,” Barnett tells Quartz, ” is that there’s no hierarchy of modality. It’s just picking whichever mode supports your desired outcome.”
Barnett is a converted originalist himself. In 1999, he wrote a paper published in the Loyola Law Review entitled “An Originalism for Nonoriginalists” which argued that “originalism is now the prevailing approach to constitutional interpretation.” He believes it’s the most reliable and viable legal theory around.
Because conservatives have embraced originalism, progressives tend to reject it. Yet as Barnett points out, originalism isn’t a political philosophy and doesn’t dictate outcomes—it just defines the way a judge considers a case. And there are progressive originalists, like his Georgetown colleague constitutional law scholar Lawrence Solum.
In May, Solum published an article in Con Law Now called “Surprising Originalism, ” which explains the misunderstood and oft-maligned judicial philosophy, writing:
Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag—leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs.
All nine justices on the high court could identify as originalists and it wouldn’t necessarily be a conservative court, says Barnett. Nor would they all come out the same on any given issue—it would just mean that they all look to the text of the constitution itself and its original meaning for guidance.
Notably, Kavanaugh nodded to originalism when accepting his nomination on July 9, distancing himself from his political roots. “I believe that an independent judiciary is the crown jewel of the republic,” he said, adding that judges must be “independent, and must interpret the law and not make the law.” The judge indicated that on the high court he would faithfully interpret the constitution “as it is written,” providing the nod to originalism that many legal scholars—and Republicans who believe the philosophy dictates conservative results—sought.
Reasonable people can disagree
According to Barnett, the fact that Kavanaugh is an originalist should be reassuring to senators on either side because it means he’s committed to the constitution and the law—not politics. If they resist originalism and prefer alternative approaches, however, now is the time to really hone their own thinking, to force the nominee to lay out his legal theories, Barnett says.
“It’s entirely appropriate to oppose a nominee whose judicial philosophy is inconsistent with your own. But senators need to identify their own judicial philosophies, too,” he says, arguing that voting on Supreme Court nominees has become bifurcated in part because “there’s good-faith disagreement about how the constitution should be interpreted.”
Barnett believes “it’s absolutely possible for a judge to be nonpolitical.” He warns that it will become impossible, however, if generations of Americans are taught and come to believe judicial philosophy is just a cover for political partisanship. Then we really will end up with a fatally flawed legal system based purely on personal politics.
That’s problematic for everyone, says the professor, a truly bipartisan issue.