Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
The Democratic Senator most hostile to all Trump judicial nominees is Hawaii Senator Mazie Hirono. Like others I have previously discussed, her questions are quite predictable. She begins by asking each nominee whether they have any made “unwanted request for sexual favors” after the age of eighteen, without having any basis of suspicion that this is the case. (Imagine if a Republican Senator began by asking each nominee without any evidentiary basis whether they had ever used any illegal drugs, something that is at least completely clear and clearly against the law).
Her other most frequent line of questioning is to assert that there are grey areas in the law and to ask whether the nominee agrees with her that a nominee’s background and ideology will help determine how the law comes out in these areas. Most nominees do not handle this well, too readily acknowledging the premise of the question. In my view, a nominee should challenge it forthrightly. While some legal questions are indeed hard, the law has closure rules about what to do in these cases. In statutory cases, the closure rule is choose the better interpretation, even if it only slightly better. In constitutional cases, as I have argued, a judge must clearly be convinced that statute is unconstitutional before striking it down. Moreover, while everyone has personal biases, a judicial philosophy, like originalism, that focuses on the empirical facts of the world provides an important check on their influence.
Hirono often asks whether a nominee knows what his or her unconscious biases are. Some nominees are completely flummoxed by the question. But the obvious response is if the biases are unconscious the candidate would not know about them. District Court Judge Richard Sullivan, a nominee to the Second Circuit, gave this answer, and elicited appreciative laughter from the audience.
Rhode Island Senator Sheldon Whitehouse (D) is often concerned with “dark money” in politics, which he means undisclosed contributions, for which he implies cases like Citizens United are responsible. Kavanaugh and other nominees should respond that the Supreme Court has made it clear that Congress can require disclosure of campaign contributions and disclosure of those responsible for contributing to vehicles for campaign expenditures like the non-profit at issue in Citizens United. Thus, Whitehouse should direct his ire against his colleagues, not judicial nominees.
New Jersey Senator Corey Booker (D) has already said that to support Kavanaugh is to be complicit in evil and thus it may be that his past relatively sober questions do not presage his interrogation of someone he believes is an existential threat to goodness. But his previous questions have tended to focus on punishment in criminal cases that he argues disproportionately harm minorities. The first response to such concerns is to note again that they are not the province of the judiciary unless they violate the Eighth Amendment’s prohibition on Cruel and Unusual Punishment or show intentional discrimination. If the war on drugs has too many collateral costs (and there is not insubstantial argument that it does) legislatures can cut back on it. But sometimes Booker simply misstates the law as when he suggests that the Supreme Court in McCleskey v. Kemp recognized that the death penalty was administered in a racially biased way. The Court did no such thing. Instead, it assumed the truth of an academic study on the subject for purposes of argument only, finding that even if it’s true it did not show intentional discrimination in McCleskey’s case. Indeed, the majority opinion specifically noted that even considered statistically, the study showed at most, that the race of the defendant was correlated with getting the death penalty, not that it was as causal factor.
Judge Kavanaugh can help himself and educate the nation by rebutting the frequently unfounded premises of Senators’ questions.