Journalists and the public may think that the automatic-weapon fire directed at Brett Kavanaugh by the Senate Judiciary Committee is composed of relevant and worthy questions for the Supreme Court nominee.
They should really talk to an experienced law professor.
Peter Schuck tells us what we should want Kavanaugh to answer – the questions that actually matter in how a judge thinks about and decides any given case.
The emeritus professor of law at Yale University writes in The New York Times that “partisan affiliation is not fully predictive of justices’ votes” in the vast majority of cases they hear:
In hard cases, excellent legal arguments (not just ideological ones) can be made on both sides, often because the relevant legal principles are unclear or conflicting. Also, judges (and administrative agencies initially) can reasonably interpret the key facts differently. The competing values (there may be more than two) may be compelling. Most justices care about a decision’s legal and social consequences, yet in hard cases these effects may be opaque and unpredictable — perhaps because they depend on what the states decide to do.
Not only do conservatives sometimes embrace a “living Constitution” and liberals sometimes uphold national security restrictions, but justices also behave far outside the “Manichaean liberal/conservative battle” often portrayed in the media:
This perverse ideological focus hides or denies the fascinating interplay among legal doctrine, textual interpretation and the factual record in determining outcomes. It also crowds out the more revealing lawyerly divisions among the justices about what should matter in resolving hard cases — for example, the relative importance of national uniformity versus local diversity, of clear rules versus more contextual standards, of government authority versus individual rights, of deference to elected officials versus bureaucratic expertise, of the default rules for interpreting ambiguous language, and so forth.
It would be better for senators to stop “grandstanding with questions that simply highlight Judge Kavanaugh’s well-known ideological positions, and a lot more time trying to assess how he would vote in these much trickier cases,” Schuck says:
Had a “normal” president nominated him rather than a bizarre, lawless one, this nomination would be no more controversial than, say, Elena Kagan’s — another superbly qualified choice. Unless the Democrats come up with something disqualifying, he should be confirmed.
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