The Senate Judicial Confirmation Hearing

After a raucous beginning, Judge Brett M. Kavanaugh, President Trump’s nominee to the United States Supreme court, got his chance to speak:

“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”

He went on to say he would be “a neutral and impartial arbiter who favors no litigant or policy,” and that a judge “must be independent, not swayed by public pressure.”

Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee in Washington on Sept. 6, 2018. (Alex Brandon/Associated Press)

You may rest assured that these simplistic, noncontroversial, aspirational words were honed by professional speech writers and that they have been tested through the years on focus groups. My impression was that Kavanaugh was giving a performance that he has been preparing for his entire life. He has been groomed for this moment by the conservative Federalist Society and there is not the slightest chance he will make a mistake. The same could be said of Justice Neil Gorsuch, who was confirmed before him. You are seeing the Republican/ Libertarian/ Conservative master plan for the judiciary unfold and it will have far reaching and long lasting consequences. I almost wish the Senate Judiciary Committee would spare us the sham hearing. They already know what is going to happen and so do we. As someone on television said recently, “losing elections has consequences,” and we are witnessing those consequences.

It is painful to watch politicians attempt to cross examine Kavanaugh. When they ask about his position on legal issues, he easily evades or bats away their questions by simply saying he can’t and shouldn’t answer hypothetical questions and/ or that it is improper for him to make a comment or commitment about a pending case or an issue that may come before the Court. By the time you eliminate all the important questions he says he can’t, shouldn’t or won’t answer, there isn’t much left to talk about. The politicians are way out of their depth and I suppose they know it. Maybe that is why they resort to reading prepared statements.

What would be interesting and insightful is for legal scholars to ask the questions, but I’m sure that isn’t allowed and, in any event, the politicians don’t want to surrender the limelight.

Since we know that Kavanaugh will be confirmed and that the Court will become even more predictably conservative, it is reasonable to presume the Court will rule to the right on all the hot-button social issues such as abortion, gun rights, voting rights, discrimination, speech, religion, etc., and that the Court will continue to favor big business over individuals.

Ironically, Trump’s populist base of support (presumably ordinary working class people) will probably be harmed by most of this Court’s rulings, which won’t be about social issues, but they don’t seem to know that. Perhaps this is due to their laser focus on the social issues that generate headlines or maybe it is because it is not immediately apparent to them how the meat and potatoes cases affect them.

For a very good analysis of the proper role of the Supreme Court, read the essay of David A. Kaplan, “What’s the Point of the Supreme Court? in the New York Times of September 5, 2018.

For more about the Federalist Society and the role it now plays in shaping the judiciary, read the book “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, by Amanda Hollis-Brusky, or Ms. Hollis-Brusky’s 6/28/18 interview on NPR, and the book “Dark Money”, by Jane Mayer.

One last point. Kavanaugh is only 53 and has been a judge for 12 years. He attended Georgetown Preparatory School, then Yale University. He remained at Yale to attend Yale Law School. His legal practice was with the firm of Kirkland & Ellis, one of the largest, “white-shoe” law firms in the world. He has also served as a law clerk for federal judges, worked as White House Staff Secretary in the Bush Administration, and worked for Ken Starr during the Clinton investigation. This elitist pedigree has become somewhat of a template for serving in the federal judiciary. Wouldn’t it be nice to see someone appointed who attended public schools and state universities, represented individuals as a lawyer over many years, and had “paid his dues”?

Photo by: Alex Brandon/Associated Press