“Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where It Would Lead to Progressive Results


I cringe when I hear folks express a fear that a Supreme Court nominee is likely to “use his position as a judge to legislate from the bench.” Don’t you just hate it when Supreme Court justices march across the street to the Capitol building, call for a voice vote on a bill, and then sign it into law?

The problem with the metaphor of judicial legislation is, of course, that no one knows (or at least agrees on) what it means. So too with “judicial activism,” “strict construction,” and the like. For instance, Justice Antonin Scalia was famously a “textualist,” and yet (openly) ignored the plain text of the Eleventh Amendment in deciding cases about states’ rights. That made him a rather more complicated textualist than might originally be supposed.

The only—I repeat, only—way to meaningfully understand a Supreme Court nominee’s approach to deciding big cases in the future is to dig beneath general labels and look at specific big cases from the past, to see what the nominee says in or about these actual legal disputes. When I give a constitutional law exam, if I allowed students to answer a question without requiring them to comment on specific cases, what the cases mean, whether the cases were correctly decided, and why or why not, I would have no basis on which to issue grades.

If the country is to have any real sense of the direction(s) in which Judge Brett Kavanaugh (whom, I should say, I know and respect from our time together in law school) might move the nation’s jurisprudence, then we need to focus on what he thinks about specific important legal controversies of our day.

And yet this will probably not happen, because over the years many senators—even diligent senators—reflexively and unwisely seem to have conceded that while it is appropriate to ask a nominee about his general approach to judging and interpretation, it is not permissible to ask for detailed views about actual cases. This is nonsense. If it’s not right to ask a nominee for specific views about specific cases, the usefulness of even having a hearing is open to question.

The Weakness of the “Prejudging” Objection

The most common objection to specific case queries is that for a Supreme Court nominee to comment on the correctness of a past ruling would be to prejudge the issues presented in that ruling should those issues recur on the Court after the nominee has been confirmed. Rubbish. If a nominee violates principles of judicial ethics by giving his views on a case that raises recurring issues, why wouldn’t the same be true for the sitting justices themselves who—in written public opinions and dissents—have given their views in the very same case?

Are these justices, who have spoken on an issue in a case, disqualified from participating in another case down the road that poses the same or similar questions? Of course not. They are still well suited to hear the later case, and are free to change their minds if they are convinced it makes sense to come out another way.

A clever response to my suggestion here might be to concede that speaking about the rightness or wrongness of particular cases doesn’t make a jurist prejudiced per se, but that it still is problematic and thus something to be avoided if possible. In the situation of a sitting justice, regrettably, there is simply no way for her to do her job without voting (and explaining her vote) in cases that come before her.

Perhaps. But just as a sitting justice has a “job to do” in deciding cases, so too a nominee has a “job to do” in giving the Senate information about the kind of justice he will be, so that the Senate can do its constitutionally assigned job of “advice and consent.” In any other setting, Americans would think it ridiculous that someone being interviewed for a position could decline to answer questions about how he would have handled real-world situations in which past employees had done things that either pleased or displeased the ultimate employer (who in the case of the Supreme Court would be, in the long run, the American people).

Moreover, if sitting justices are justified in talking about the merits of cases only because justices have to in order to resolve the cases in front of them, how could one ever explain or defend the quite common practice of justices talking about the merits of cases in other settings, such as dicta in a case, or in law review articles and speeches? (For example, Justice Scalia, in whose mold the president has said he wants to appoint people, expressed views about the correctness or incorrectness of specific cases in articles and speeches all the time.)

The Key Distinction Between Promise and Prediction

So it cannot be that answering questions and rendering views about past cases is inherently problematic. But the form that the questions and answers take should be carefully chosen so as to avoid any suggestion that the Senate is seeking, or the nominee is giving in order to get confirmed, promises of how he will rule in the future.

Explicit or implicit promises about future rulings are out of bounds; such promises if sought and given would indeed compromise judicial independence and due process of law. Our Constitution sets up three independent branches; the judiciary is not supposed to be the puppet of Congress or the president.

But a nominee’s disclosure of specific views about actual past cases does not commit him to rule any particular way in the future. He remains free to change his mind if persuaded by sound legal arguments in later cases. Just as then-Justice William Rehnquist in his confirmation hearings for Chief Justice in 1986 could have properly—without making any impermissible promises—told Senators that particular of his own prior Supreme Court writings as an associate justice accurately reflected his constitutional vision (and no one could really doubt that this would have been proper), so Judge Kavanaugh can explain to senators that he agrees—or disagrees—with particular opinions of Rehnquist or others.

The Supreme Court has itself already recognized this key distinction—between permissible predictive information on the one hand, and impermissible promises on the other. In Republican Party of Minnesota v. White, the Court invalidated a Minnesota regulation that prohibited every candidate for judicial election from “announc[ing] his or her views on disputed legal or political issues.” In striking the limitation down, the Court was careful to point out that Minnesota elsewhere prohibited each judicial candidate from making a “pledge” or “promise” to decide a particular issue a particular way, a prohibition that was not being challenged and as to which the Court did not express any skepticism.

The Court in White also said many other things relevant to the topic before us today. First, the Court observed that if we define what is out of bounds in terms of issues “likely to come before the courts,” we will have excluded everything, because “there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of competent jurisdiction.”

Moreover, the White Court noted that allowing “general” discussions of case law and philosophy while at the same time foreclosing specific statements of specific views of candidates does not provide the public with the relevant information it needs. Why? Because “like most other philosophical generalities, [general statements of judicial philosophy] ha[ve] little meaningful content for the electorate unless [they are] exemplified by application to a particular issue of construction likely to come before a court—for example, whether a particular statute runs afoul of any provision of the Constitution.”

Furthermore, in discussing the problem of judicial “partiality” and the appearance of partiality, the White Court drew a careful distinction between issues and parties. A judge is not partial just because he has preconceived leanings about legal issues (so long as he will read the briefs with an open mind). He is biased only if he has preconceived leanings in favor of or against particular parties.

Thus, so long as a judge applies his legal views—even long-held and long-expressed legal views—evenhandedly to all parties (and avoids talking about actual parties currently or imminently before him), he is not doing anything that suggests any appearance of impropriety, let alone any actual impropriety.

As the White Court observed: “Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

The Concessions Made by Those Who Object to Specific Questions Already Prove Too Much

On top of all this, the fact that everyone seems to concede that nominees can and should talk about their own past statements and writings about specific cases (from the bench or elsewhere) in front of the Senate devastates any objections to asking nominees their views about all past cases, from all major courts. If a nominee can explain, justify and stand behind what he has written about a legal issue in the past without “prejudging” or “committing to a resolution of” that issue, then why can’t he explain, justify, and stand behind his view about what other jurists have written?

Similarly, the following question should be posed to those who want to argue for some line between general philosophy and specific case commentary: Why doesn’t discussion of a nominee’s general philosophy amount to “prejudging” or “precommitting” with respect to that philosophy?

For example, if a nominee says in response to a query about the philosophy of stare decisis (or adherence to precedent): “I believe strongly in the doctrine of precedent,” is he promising that he will always and forever, even after he assumes his new judicial post, believe so strongly in the doctrine of precedent? If so, then why are questions about a candidate’s views on stare decisis okay? And if not—because the candidate is free to change his mind—the same lack of commitment applies to views on specific past cases, not just views on big ideas like stare decisis.

The distinction between general philosophy and specific case views is, then, incoherent and unworkable (as I argued a decade and a half ago in my Yale Law Journal student Note); instead, the relevant distinction (as I argued then and continue to believe) is between an informed prediction (which permissibly may be sought), and a promise (which should not be requested or given.)

Debunking Logistical Objections

But what if the nominee were to say: “I haven’t read all the briefs in the case about which you ask, so I’m not sure which result makes the most sense”? The Senate rejoinder should be: “Here are the briefs and oral argument transcripts—get back to us in a few weeks” (the way real justices have to do when they vote on a case only a few weeks after having read the briefs).

If, instead, the nominee says: “I can’t be sure how I would vote until I know that the outcome of a real-world case actually turns on my vote,” the comeback ought to be: “We’re not asking you to analyze an abstract hypothetical; the fact that there’s a published Supreme Court opinion on the merits means there was a concrete and ripe controversy here. And to the extent that your sense today about how you would have voted is imperfect because your views won’t count in that case as it was actually handed down, we will take it for whatever it might be worth.”

(By the way, the questioning senator might add, votes by dissenting justices in actual cases are similarly irrelevant to the outcomes in those cases, but that irrelevance does not deter justices from registering dissents. Nor does similar “outcome irrelevance” deter justices from writing law review articles or delivering speeches about cases).

A Fallback Position

In the end, the real question ought not to be whether a nominee can be forced to say whether he thinks actual past cases were correctly decided, but rather: Which cases ought we require a nominee to weigh in on, to best take the constitutional measure of (in this instance) the man? In a sensible world, we would be spending the next few weeks identifying ten or so closely divided (5–4 or 6–3) Supreme Court decisions from the past decade covering a range of important constitutional and statutory areas, and then ask Judge Kavanaugh to do what lawyers all across the country do every summer after big cases come down: read the majority opinions, concurrences, and dissents, and say who got the better of the legal debate in each of the cases.

But we are not in a very sensible place right now, so here is my backup approach: It seems very likely that Judge Kavanaugh will discuss (because it involves “general philosophy” rather than case-specific views) the very important methodological principle of originalism—the idea that the original public meaning of the Constitution’s words should generally drive its application even modernly. Originalism is an idea often associated with conservative constitutional outcomes, especially in areas such as the scope of presidential power and control over executive officials, government power to regulate intimate relationships and sexual activity, liberties of individuals under the Second Amendment to keep guns, rights of property owners, and cutbacks on or the elimination of the so-called exclusionary rule in Fourth Amendment cases.

But originalism—if truly applied across the constitutional board—is an idea that could often lead to important progressive results.  In particular, the following list of disputed constitutional doctrines are ones as to which fair-minded originalism should generate results that are more progressive than the current doctrinal status quo: state immunity from suit under the 11th Amendment; so-called “qualified immunity” of individual officials who violate constitutional rights; Congressional powers under the Reconstruction Amendments, including the Fifteenth Amendment on voting rights; race-based affirmative action; federal power to vindicate voting equality; government’s authority to provide for public finance of election campaigns; the “dual sovereignty” exception that currently permits people to be tried for essentially the same crime twice, once by the state and once by the feds; and the ability of states to make use of direct democracy under the Guarantee Clause of the Constitution or within the meaning of the term “legislature” of the states as it appears in various places of the Constitution.

At his hearings, Judge Kavanaugh should be required, at a minimum, to speak, even in broad-brush terms if that’s all we can get, about what he thinks the original public meanings are in each of these areas of constitutional dispute. In addition, Judge Kavanaugh should be asked to acknowledge that there is no principled reason that originalism should govern these areas any less than other constitutional realms.

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