fbpx

How Kavanaugh Should Respond to Senators’ Questions, Part I

For my sins, while filling in footnotes for law review articles, I sometimes listen to Senate hearings on judicial nominations. With the Kavanaugh hearing now scheduled for September 4, here are some thoughts on Democratic Senators’ characteristic questions and lines of attack. Expect to see them, because many Senators ask the same questions, regardless of the nominee.

Senator Richard Blumenthal (CT) — Blumenthal asks almost every candidate whether Brown v. Board of Education is rightly decided. He is trying to put the nominees in a no-win situation. If they follow the most plausible reading of canons of judicial ethics as well as some previous Supreme Court nominees and decline to opine on Brown, Blumenthal denounces them and sometimes insinuates they cannot be trusted on matters of race. If they answer that Brown is sound, he then asks about whether Roe v. Wade is correctly decided.

In my view, Kavanaugh should note this dilemma and Blumenthal’s own past follow-ups in declining to answer the Brown question. He might use the opportunity to talk about why sometimes law has bright line rules even if applying them in particular extreme instances seems silly to the layperson.

Senator Richard Durbin (IL) — Durbin is quite obsessed with the Federalist Society and sometimes impugns nominees for their association with it. In my view Kavanaugh should emphasize the society takes no positions on Supreme Court cases or on any legal policy. It is thus less ideological as an organization than the ABA, which does take policy positions, including supporting a constitutional right to abortion. Speaking at Federalist Society events or even being a member of the Society does not commit you to particular positions. Indeed, members of the society disagree on most conceivable newsworthy issues that would come before a justice.

At a hearing previous to the current Congress, Durbin has also assailed originalism, because he says that the Three-Fifths Clause in the original Constitution treated slaves as less human than whites, making them count only 60 percent of other citizens for census purposes. Of course, the legal response here is that the originalism today means following the Constitution as amended and the Three-Fifths Clause has long been effectively eliminated. But the historical response is that South wanted to count slaves fully for the census, because that would have increased their voting power. Indeed, those opposing slavery understood the Three-Fifths clause to be “the slave power” responsible for electing pro-slavery Presidents by inflating the electoral votes of states where slaves where prevalent. The real evil was slavery itself and the denial of equal suffrage by certain states—matters that were ultimately exposed as in tension with the free and commercial society that the Constitution created.

Senator Amy Klobuchar (MN) — Klobuchar asked Neil Gorsuch whether, as an originalist, he would deny the ability of women to be President, given that the Constitution refers in many places to the President as “he.” But evidence from the Bibles used at the time and indeed from the Constitution itself in its extradition clause, shows that the term “he” could apply generically to both males and females. Moreover, the express qualifications for being President in Article II include no requirement of maleness. As I have noted, Martha could have succeeded George had the electors so chosen. But Kavanaugh could also point out that those understanding the Constitution in contemporaneous terms might be forced to come to a different conclusion, since today many more people insist that the term “he” exclusively refers to a male. Klobuchar’s question thus presents an excellent opportunity for a defense of originalism, which Gorsuch in one of his rare lapses at the previous hearing did not take.

In any event, Kavanaugh and other nominees should be forceful, albeit respectful, in their responses to such hostile questions. It is not as if they are likely to win any Senators over by pulling their punches.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on August 14, 2018 at 10:55:29 am

Very good. I hope Professor McGinnis will cover in a subsequent article how he thinks the judge should respond if a senator asks about his philosophy on the judiciary's role in restraining government regulation going back to Lochner.

read full comment
Image of George Leef
George Leef
on August 14, 2018 at 11:09:31 am

Or on his philosophy on the Legislative "delegating" all their legislative powers to the Executive (or is it the Judicial!

read full comment
Image of gabe
gabe
on August 14, 2018 at 13:01:30 pm

I guess you're ok with his idea that a president should be able to shortcut the judicial process and determine what's constitutional all by himself. I find this a strange attitude in a column that is supposed to be about the legal system, but I guess Trump supporters have to do what they can to put a patina of respectability on the circus we call the White House. Do tell us your opinion on Trump's feeling that he should be president for life in a one-party country.

read full comment
Image of excessivelyperky
excessivelyperky
on August 14, 2018 at 14:13:20 pm

Perky's what happens to people who "grow up" (sic) obsessed with their video games and their smart phones and develop their basic understanding of life, people and politics through social media.

Perky you did not follow my last round of advice, so this is the last time I'll try to help you: throw away your smart phone, read a book, any book, even "The Audacity of Hope," and then write a coherent sentence about it. Then try to write a second coherent sentence about it, etc. until you've written a whole paragraph. Then leave your parents' basement, go upstairs and ask your mom or dad what they think about your effort and how you might improve it.

Small steps at first 'til you get your brain unstuck

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on August 14, 2018 at 14:49:54 pm

As to Kavenaugh's answers to hostile Senators' hypothetical questions, here is what I would add to McGinnis' excellent suggestions:

Blumenthal: decline to answer on whether Brown or Roe were rightly decided but opine forcefully that Judge Kavenaugh considers the "Stolen Valor Act" both clearly constitutional and among the finest pieces of legislation ever produced.

Durbin on association with the Federalist Society: Kavenaugh should defend the readily-defensible, preeminent FedSoc but add, "It's true, Senator Durbin, a person's associations shed bright light on his fitness for office; I believe that you can judge a man by his friends, which is why I would never associate for one hour let alone 20 years with Chicago's Reverend Jeremiah Wright or Bill Ayers."

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on August 14, 2018 at 17:03:17 pm

"Do tell us your opinion on Trump’s feeling that he should be president for life in a one-party country."

Something is definitely "perking" here. Ah, the malodorous effluence betrays the attempt to deny that another septic tank has been breached. Hurry, get the smell and the slime off of yourself as it apparently affects whatever rational faculties you may have once possessed.

One could say that this "permanent presidency" narrative is fake news BUT it is simply another attempt by the lunatic, idiotic and demented left to garner some attention while at the same time convincing themselves that they are a) aware of the *real* secret decoder ring Donald Trump and b) that they are both wiser and more virtuous than those execrable bastards on the right who refuse to recognize that Trump is actually a hideous monster.

BTW: It does make these idiot children afford themselves many compliments; after all, if they can divine the secret meanness of Trump, THEN they must be quite courageous to expose his sinister intentions to the world.

You, Dear are an *idchiot* as my Smurf friends from new Delhi say.

read full comment
Image of gargamel rules smurfs
gargamel rules smurfs
on August 16, 2018 at 10:50:13 am

It is important to note in regards to precedent and due process law, if a case is presented to The Supreme Court that illuminates the fact that a previous precedent was set erroneous due to an error in Substantive and/or Procedural Due Process Law, based upon The Constitution, that previous precident, based upon error, can and should be overruled, in order for Justice to prevail.

read full comment
Image of Nancy
Nancy
on August 16, 2018 at 10:54:14 am

oops, that should read:

It is important to note in regards to precedent and Due Process Law, if a case is presented to The Supreme Court that illuminates the fact that a previous precedent was set erroneously, due to an error in Substantive and/or Procedural Due Process Law, based upon The Constitution, that previous precident, can and should be overruled, in order for Justice to prevail.

read full comment
Image of Nancy
Nancy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.