Having won President Trump's nomination to replace retiring Justice Anthony Kennedy, Judge Brett Kavanaugh still faces many weeks of grueling Senate meetings and interviews before the all-important confirmation vote. The big question is, will the Senate be asking the right questions?
Given the enormous power the U.S. Supreme Court wields today, it's understandable that we all want to know what Judge Kavanaugh's views are on everything from abortion, to the Affordable Care Act, to labor unions. But if the senators really want to use the confirmation process in a way that fulfills their duty to "support and defend the Constitution of the United States against all enemies, foreign and domestic," then here are the three most important questions for them to ask of any nominee:
- Are you a constitutional realist or a constitutional mystic? Our legal and academic communities have become so enamored with the idea of a "living" Constitution that I was shocked a dozen years ago when I heard the late Justice Antonin Scalia proclaim to a group of law students, "The Constitution I apply is not living – it's DEAD!" But in reality, it is this very fact – the inanimate nature of constitutional text – that imbues the Constitution with power.
The words of the Constitution were not written in magical ink. They don't change, grow, or evolve with the times. If they did, then the Constitution could not protect us from the will of judges or the culture that influences them. Judges could simply declare (as many are wont to do) that constitutional words, today, mean something new and different than what they meant when they were written. Interpreting and applying the Constitution is altogether different from reading tea leaves, and a proper Supreme Court justice must appreciate and respect the distinction.
- Is your allegiance to the written Constitution stronger than your allegiance to precedents and your own public policy convictions? Everyone seems to be focused on Judge Kavanaugh's views on issues like abortion, gay marriage, or health care. But a judge's role is to interpret and apply laws, as they are written, to the facts of particular cases.
Justice Kennedy once said, "We must never lose sight of the fact that the law has a moral foundation, and we must never fail to ask ourselves not only what the law is, but what the law should be." He was right, in a general sense. It is up to "we," the American people, and the legislators we elect to make law, to faithfully anchor our legal codes in the Moral Law. But a judge's duty is to base rulings on what the law is, and never on what he or she thinks the law should be. Precedents based solely on a judge's beliefs should be abandoned accordingly.
- Can you exercise self-restraint in the face of opportunities to orchestrate cultural change? Chief Justice Harlan Stone once observed, "While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint."
In today's America, Supreme Court justices are celebrities. We learn about their backgrounds, buy their books and listen to their speeches, because we know how much impact their views will have on the law and policy that governs us. A large portion of the American people appear willing – even eager – for Supreme Court Justices who create law and policy. So it is critical forsSenators to look for personal and institutional humility in the nominees they consider. In the context of so much popular confusion about what it is that the Supreme Court is meant to do, America desperately needs judges who understand their proper role and are humble enough to decline invitations to expand it.
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Is Judge Kavanaugh a constitutional realist or a constitutional mystic? Is he more committed to upholding the Constitution, as written, than to preserving baseless precedents or promoting his own policy views? Is he humble with regard to his role, and that of the Court, in shaping America's future? The first step toward a Supreme Court that fulfills its proper role is for our senators to spend the next several weeks asking these questions instead of grilling Judge Kavanaugh on his particular policy views.
Asking the right questions of today's nominees will eventually yield a restrained, role-respecting Supreme Court – and render the wrong questions moot for future nominees.
