Forget the breathless and endless speculation about how judicial nominees will rule on this or that hot-button “issue.” Judicial “agendas” are not the way courts work in theory, and since it’s a good theory it predicts judicial behavior most of the time.
I saved for last (in a fairly short blog) some wry comments on the hearing process itself.
No Court with Chief Justice John Roberts as the swing vote is going to overturn precedents willy-nilly, even if an originalist interpretation of the Constitution suggests that it should. The Court has other things to consider, such as how deeply precedents have become embedded in law and social practice.
… The real reason Democrats are furious about a Court with five conservatives is that it may no longer be an engine of progressive policy. If liberals want to guarantee a minimum income or a right to suicide, they will have to persuade voters and pass it democratically. No longer will five or six Justices be able to find such rights in the “penumbras” and “emanations” of the Constitution.
You really could drop “with Chief Justice John Roberts as the swing vote.”
A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.
Ruth Bader Ginsburg’s opening statement at her confirmation hearings in 1993, via David B. Rivkin Jr. and Andrew M. Grossman in the Wall Street Journal.
Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies”—that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.
Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation, a guess as to what the right rule might be.
In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it? Answering at all would be deceptive.
… A nominee’s advance commitment to decide a question a certain way is incompatible with the appearance of fairness and impartiality that gives the law its legitimacy.
This is the best explanation of the difference between judging and legislating that can recall ever having read. Re-read Nominee Ginsburg’s admirable summary now and see how apt it is.
(Has it really been 25 years since Ginsburg’s confirmation?! Not possible!)
Ross Douthat and Frank Bruni on the Kavanaugh confirmation hearings:
Douthat: They are an extensive exercise in senatorial grandstanding, defensible only on the grounds that days and days of stupefying boredom might somehow prompt a judicial nominee to break down, Colonel Jessup-style, and scream, “You’re goddamn right I’m going to overturn Roe v. Wade!” But Brett Kavanaugh was genetically engineered by mad scientists working in the Federalist Society’s basement to never, ever, break down ….
Bruni: These hearings are also about the 2020 presidential election. It’s worth noting that at least three potential Democratic presidential contenders — Amy Klobuchar, Cory Booker and Kamala Harris — will get to ask Kavanaugh questions. Which means that they won’t really be asking questions per se. They’ll be swept up in an audition, a preen-a-thon, “American Idol: Democratic Nominee Edition.” For those who want to skip it, I can give you an oxymoronic advance recap: Kavanaugh dodges question; Klobuchar delivers rousing soliloquy; Kavanaugh punts; Booker wows the room with fierce words; Kavanaugh sidesteps; Harris’s voice rises high.
Douthat: If one of them can get Kavanaugh to lose his cool, that senator will be the Democratic nominee by default — though really, I half expect Michael Avenatti to crash the hearings and try to effect a citizen’s arrest of Kavanaugh, at which point he’ll be handed the Democratic nomination by acclamation.
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Jesus said to them “A prophet is not without honor except in his own country, among his own relatives, and in his own house.” Now He could do no mighty work there, except that He laid His hands on a few sick people and healed them. (Mark 6:4-5)