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THIS IS NOT JUDGMENT DAY

Kavanaugh won’t say how he will rule—and that’s a good thing

US Supreme Court nominee judge Brett Kavanaugh testifies.
Reuters/Chris Wattie
Saying just enough.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

This article is more than 2 years old.

US Supreme Court nominee Brett Kavanaugh is taking questions from senators at the Senate Judiciary Committee confirmation hearings today (Sept. 5). Only somewhat deterred by the hecklers occasionally yelling over him, he’s responding in detail on all the hot-button issues—abortion, gun control, presidential powers, the environment, and more.

Yet, somehow, simultaneously, he’s been evasive.

Citing liberal judges at their confirmation hearings—Ruth Bader Ginsburg, who said “no hints, no forecasts, no previews,” and Elena Kagan, who refused give “a thumbs up or thumbs down” on potential rulings—Kavanaugh is managing to be both responsive and dodge questions. “I liked her formulation,” he said of Kagan before refusing to be pinned down on hypotheticals.

For some viewers, this might be infuriating, the ultimate sneaky lawyer move.

Actually though, it’s a good thing.

Because, as the justices before him and Kavanaugh today contends, an independent judiciary cannot trade responses and promises for votes, and must keep an open mind about every case. So though we may want to know just how they’ll decide matters, we should be pleased to hear Kavanaugh tell senator Dianne Feinstein, when asked about his views on a president’s obligation to respond to a subpoena, “I can’t give you an answer on that hypothetical.”

US v. Nixon

The question arose in the context of a discussion of the 1974 case US v. Nixon, in which a sitting president, Richard Nixon, was subpoenaed for documents. “That holding is one of the four greatest moments in Supreme Court history…the court stood up for judicial independence in a moment of national crisis,” Kavanaugh told senators, adding that he thought the media has not given “a correct impression of my views in the news.”

The reporting didn’t come out of thin air, of course. In a 1999 issue of the Washington Lawyer, he said, “Maybe Nixon was wrongly decided—heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently.”

The sense is confirmed by a 2009 Minnesota Law Review article (pdf) in which Kavanaugh wrote that a sitting president should be immune from the distractions of civil and criminal litigation. Given Donald Trump’s current predicament—the investigation by special counsel Robert Mueller into possible Team Trump collusion with Russian meddling in the 2016 presidential election—Kavanaugh’s position seems very favorable to the president.

What could be better for the president than seating a justice who would refuse to prosecute the commander in chief? Indeed, Minnesota senator Amy Klobuchar thinks this is why Trump picked Kavanaugh for the open seat on the court.

Kavanaugh worked on the special counsel’s investigation of president Bill Clinton and served as an adviser to the George W. Bush administration for five years, a tenure that included the Sept. 11, 2001 terrorist attacks. Today he said his law review article isn’t an indication of how he’ll decide future cases about presidential investigations, calling it a product of “very deep thought” on his previous experiences, based on an insider and outsider view, both an understanding of what it’s like to investigate a president and to advise one in a time of national crisis.

Kavanaugh insisted that his past writing isn’t an indication of decisions he’ll make on the court. “They were ideas for Congress to consider—they were not my constitutional views,” he told the senators. “I have only put out proposals for you all to consider.” Moreover, he argues that his personal views have nothing to do with how he decides a case. His allegiance isn’t to the president or anyone else, he said:  “I owe my loyalty to the constitution.”

Feinstein, in an effort to square Kavanaugh’s alleged admiration for the holding in Nixon with his later writing, asked him whether that means he’d approve a subpoena of a sitting president if appointed as a justice.

“That’s a hypothetical question about what would be an elaboration of difference from Us v. Nixon’s precise holding…I can’t give you an answer on that,” he replied.

Kavanaugh managed to answer in a way that might appease those who believe he is the nominee mostly because he’d protect Trump from the kind of “distracting” process he helped put Clinton through. He also avoided promising that he’ll approve investigations of the president should such a case arise while he’s on the bench.

It seems like slippery political trickery. Yet he’s also not wrong when he insists that it’s not a judge’s job to decide hypothetical cases in advance or promise the public outcomes ahead of an appointment.

Principles v. politics

Why bother with this confirmation process then? Why is Kavanaugh even talking at all if he won’t say anything that will help us make sense of how he’ll decide big cases?

Confirmation hearings do provide some insight, offering the public an opportunity to see the prospective justice and hear him discuss his judicial philosophy—which is not the same as talking about specific cases.

A discussion of legal principles is very different from partisan debate. Seeking and providing reassurances on specific cases and situations is a mistake, says Randy Barnett, who directs the Georgetown Center for the Constitution in Washington. He tells Quartz that senators should be probing the nominee on his judicial philosophy: “You don’t want nominees to commit to outcomes. Senators should be asking about clauses of the constitution, not the cases.”

In this regard, Kavanaugh has been forthcoming, elaborating on his idea of what a good judge must do, including “resisting public pressure, political pressure, treating everyone equally no matter what station.” He repeated the refrain that he’d be “independent, make decisions based on law, not political pressure, not based on identity, no matter rich or poor, whatever station in life, race or gender, it’s all equal justice under law.”

He’s even answered the executive-powers question, albeit in a roundabout way, saying, “No one is above the law in our constitution” and that the “executive is subject to the law.”

Over and over, he has expressed his respect for precedent, the importance of maintaining a legal system that’s reliable, predictable, and meets the needs of the people all while adhering to constitutional principles. ”I don’t live in a bubble,” Kavanaugh said when asked his position on issues like women’s reproductive rights and gun laws.

The nominee insists that he’d be part of “a team of nine” justices, and that litigants who’d come before him, whether they win or lose, would feel they got “a fair shake.”

He points out cases where he decided against a Republican administration, like the 2012 Hamdan v. US, in which an “associate of Osama Bin Laden” involved in the Sept. 11 attacks was prosecuted before a military commission, writing the opinion finding this commission process unconstitutional. “Why did I rule for someone involved in Sept. 11? The law compelled it,” Kavanaugh said.

“We don’t make decisions based on who people are but on the law. [Justice Anthony] Kennedy’s example of independence is what I try to follow,” Kavanaugh says. “I’m a pro-law judge. I’ve ruled for parties based on whether they have the law on their side. If you walk into my courtroom and you have the better legal arguments, you will win.” 

It’s hard to argue with such reasonable responses and not to be convinced by Kavanaugh’s rhetoric if you’re really listening to the answers and haven’t decided in advance.

But the hearings are a strange political process for a job that’s meant to be apolitical and—after all is said and done—it’s still difficult to determine how Kavanaugh would decide key cases, given his previous political positions. And really, this is what everyone wants to know.

It’s part of a peculiarly American and contradictory desire: The constitution and country prize an independent judiciary even as political factions want to seat judges to their liking—and hope judges won’t be swayed by the other side’s partisan views.

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