Yesterday, the Senate Judiciary Committee took up the nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the U.S. Supreme Court. After watching the Judiciary Committee nearly meltdown before the hearing even began, it’s fair to wonder whether we will learn anything meaningful in the days ahead about what kind of Justice Kavanaugh will be.
Don’t hold your breath. Having been involved in four of the last five Supreme Court confirmation fights—two while working for the Senate Judiciary Committee; two while serving in the Obama Administration—I know that these hearings aren’t designed to explain, beyond the bumper-sticker level, what kind of justice a nominee will be. Instead, as yesterday’s events demonstrated, this week will be more like revival theater in which scripts from recent confirmation hearings are repurposed with updated material, new actors, and some of our favorite old actors playing new roles.
I’m not the first person and won’t be the last to call all of this theater. Nor does it do much good to lament the days when most Justices were confirmed 98- or 97-0 (as Justices Antonin Scalia and Ruth Bader Ginsburg were), because as much as many of us wish we could, we aren’t going back. Instead, I want to help try to explain the fight that happened yesterday, and what to expect going forward.
The Document Fight
Those who tuned in yesterday were treated to fireworks over the production (or lack thereof) of documents from Judge Kavanaugh’s tenure in the George W. Bush White House. Democrats launched what appeared to be a coordinated protest at the beginning of the hearing based over the White House’s decision to assert executive privilege on one out of every five pages of Kavanaugh’s White House Counsel documents, as well as the fact that approximately 40,000 pages of documents were produced to the Committee for the first time on the eve of the hearings. All of this is unusual.
In normal times, a lawyer for the Bush Administration would identify some small number of documents that might be subject to executive privilege, and the White House would then work with Congress to find an accommodation that would likely allow Congress to review all or nearly all of those documents prior to holding confirmation hearings. Along those lines, it’s worth recalling that the Obama Administration did not assert executive privilege over a single page of documents from Elena Kagan’s tenure as Associate Counsel to President Bill Clinton.
Additionally, Senate Republicans have refused to request (and therefore have blocked the production of) any records whatsoever from Kavanaugh’s three years serving as staff secretary. Their reasoning appears to be that staff secretary only plays a coordinating role in the White House, and therefore that the documents associated with Kavanaugh’s tenure there would not be relevant to his confirmation as a Justice. The problem with this reasoning is that staff secretary is a more senior position in the White House than the position of Associate Counsel, and Kavanaugh himself has said that his three years as staff secretary “were the most interesting and in many ways among the most instructive” influence on what kind of judge he ultimately became. Just two months ago, Mitch McConnell warned the White House against nominating Kavanaugh because of concerns that these documents could take too much time to produce and therefore could delay his confirmation hearings. The White House disagreed and forged ahead.
In light of the above, Democrats yesterday argued that the Senate has only been given access to a small fraction of Judge Kavanaugh’s records, including only a portion of the documents spanning his two years serving as an associate counsel. Republicans fired back that the White House has produced (in total page numbers) more documents than has been produced for any prior nominee. These claims are ships passing in the night. The total volume of potentially relevant electronic documents for Kavanaugh is much larger than for prior nominees because the Bush White House, as a result of improving technology, relied more heavily on email than the Clinton White House did. In order to compare nominees based on the total number of pages produced, you would need to understand and then discuss the total number of pages not produced. And by that measure, the total number of Kavanaugh’s White House documents that are been withheld from production is greater than any nominee before him.
Republicans have also defended their position by arguing that the Obama Administration refused to produce documents from Elena Kagan’s tenure as solicitor general. That’s true but misleading. Before the Kagan hearings began, Republicans on the Judiciary Committee agreed that they did not need to review Kagan’s internal solicitor general documents after a back and forth with the White House. The reason Republicans likely agreed is because the solicitor general signs onto thousands of pages of briefs that are public, much as judges sign onto published opinions, which provides a great deal of information from which to question a nominee. At the same time, internal documents from the solicitor general’s office have historically not been produced to the Senate, including prior to the confirmation hearings for Chief Justice John Roberts. That was especially sensible as to Kagan, who was only months removed from active work as the Solicitor General when her hearings began. Many of the cases she worked on were still active, which meant that producing internal documents could have created complicated legal issues in ongoing matters.
All of this back and forth can be confusing, but here’s the bottom line: as questioning begins today, senators will be expected to question Judge Kavanaugh without the kinds of documents that have traditionally been available for nominees with White House service. In the past, it’s highly unlikely that the Senate would have gone forward with hearings until some sort of accommodation could be reached, because senators on both sides of the aisle would have been concerned about setting a precedent that could be used against them in the years ahead.
Not this time. Senate Republicans have insisted that hearings must move forward this week so that Kavanaugh can be seated before the 2018 Supreme Court Term begins in October. Yet just two years ago, the Republican-led Senate made clear that the operational continuity of the Court was unimportant to them. Shortly after Justice Scalia passed away in early 2016, Senate Majority Leader Mitch McConnell hijacked the vacant seat and decided to hold it open for the rest of the year. During that standoff, Sen. Ted Cruz (R-TX) declared that the Court would be just fine if it had to operate indefinitely with only eight Justices. In other words, Senate Republicans appear to believe that having nine Justices is important only when Republicans own the White House.
Imagine if Hillary Clinton were President with a Republican Senate. Would Mitch McConnell allow Supreme Court confirmation hearings to start if a Clinton White House refused to produce three out of five years’ worth of the nominee’s White House documents? Would Judiciary Committee Chairman Charles Grassley have denied a motion to postpone hearings if the White House announced that it was withholding one out of every five documents it previously agreed to produce on executive privilege grounds? Or is it more likely that Mitch McConnell would have extended the “Garland rule” to the entire Clinton presidency, aided by arguments from Ted Cruz about why the Supreme Court would operate more efficiently with seven rather than nine Justices?
None of this is about ensuring that the Supreme Court has nine justices to start its term. Senate Republicans will not agree to any delay of Judge Kavanaugh’s hearings because of the risk, however small, that Democrats could win back the Senate and prevent Kavanaugh from being confirmed. Each additional document that is released from Kavanaugh’s White House years creates fodder for those seeking additional “no” votes, which Republicans hope to minimize. In sum, Senate Republicans are forcing through Kavanaugh now because they have the votes to do so, and they aren’t going to take any chances of that changing.
The Road Ahead
If past hearings are any guide, the next few days will involve dialogue that is substantially recycled from prior confirmation hearings. Here are a few themes to watch for as the week unfolds.
On Tuesday, Kavanaugh reprised the concept of the judge as “umpire.” A passionate baseball fan, Judge Kavanaugh has enthusiastically embraced this concept in the past, too. In sum, this concept holds that the job of a judge is to “call balls and strikes” without favoring either team. Chief Justice Roberts popularized this metaphor in his 2005 confirmation hearings, and many nominees have followed his lead since.
It’s easy to embrace the importance of neutrality and modesty in judging, of course. But the problem with the judge-as-umpire metaphor is that it doesn’t accurately reflect what Supreme Court justices do. As applied to lower court judges, particularly trial court judges, the concept is reasonably sound. And, sure, Supreme Court justices can’t favor one party over another based on personal bias. But beyond that the metaphor runs into trouble.
In the words of Marbury v. Madison, the Supreme Court is the ultimate authority in the United States for deciding “what the law is.” This means that the Court has the ultimate authority to issue binding interpretations of federal law, including the Constitution, federal statutes, regulations, and all of the other federal laws and rules underneath and in between. The Court decides far more than who wins or loses a particular case—it also defines the rules of the road that will govern the entire country.
Sometimes the Supreme Court interprets a new law for the first time, other times it adapts an old legal test given a novel factual context, and other times it will have to decide whether a legal rule that has been eroded over the years should be revived or overruled. In resolving conflicts among the lower courts, the Supreme Court will often fashion new interpretive rules to guide the lower courts in future cases. These are awesome responsibilities, sometimes with life or death consequences, and they bear little if any resemblance to deciding whether a pitch crossed home plate above a batter’s knees or whether a runner beat the throw to the base.
Instead, imagine a baseball umpire crew with the power to declare that from this point forward, the tie will no longer go to the runner, to reverse calls made by other umpires and require games to be replayed, to invalidate trades between two teams or suspend players from competition, and to invent new rules that other umpiring crews would have to follow even if they disagreed with them. Oh, also, the umpires on this super-crew can’t be fired—they have life tenure. That’s the type of umpire who sits on the Supreme Court. It does a public disservice to pretend otherwise.
Something else you’ll hear a lot about over the next few days is the Ginsburg rule. This rule relies upon a position that Ruth Bader Ginsburg advanced during her confirmation hearings, under which she declined to comment on any case that might come before her as a Supreme Court justice.
Judge Kavanaugh relied upon the “Ginsburg Rule” in his 2004 DC Circuit confirmation hearing. More recently, Justice Neil Gorsuch appeared to extend the “Ginsburg Rule” by claiming that it prohibited him from commenting on any operative Supreme Court precedent, including seminal cases like Brown v. Board of Education.
It’s worth noting that the so-called “Ginsburg Rule” is a misnomer. The principles at the heart of the rule were around for more than a half century before Ginsburg’s confirmation. In any event, Justice Ginsburg answered many questions about the merits of prior Supreme Court cases, including forthrightly expressing her views on whether she considered certain cases to reflect “settled” law. By at least one measure, Ginsburg offered more “firm responses” on the merits of prior Supreme Court decisions than any nominee in history.
This is not the place to flesh out the ethical issues at the heart of the “Ginsburg Rule.” There are very strong arguments in favor of the rule’s core—in particular, it would be inappropriate for judicial candidates to be seen as making promises to senators on how they would rule in a pending case in order to win confirmation. And it is unquestionably important for sitting judges like Kavanaugh to maintain the appearance of impartiality in all cases.
But there is an important distinction between making promises on future cases, on the one hand, and being willing to acknowledge those firmly entrenched precedents that make up the core of our constitutional order, on the other. An unwillingness to recognize and operate within that distinction means treating every prior Supreme Court decision as one in the same—literally, “a precedent” of the Court. The consequence of expanding the “Ginsburg Rule” is that the public learns next to nothing about what legal concepts a nominee believes are open to serious debate.
Even so, it is a waste of time for Democratic senators to question Judge Kavanaugh about whether cases like Roe v. Wade constitute “settled law” in the hopes of revealing whether he will vote to overturn them. If Judge Kavanaugh faithfully adheres to recent practice, he will answer all questions about Supreme Court precedents the same way—by stating that any decision (that has not been overruled) is “settled law” that is entitled to respect under the doctrine of “stare decisis” (in latin, “to stand by things decided”). With this frame of reference, prompting a nominee to say that a principle is “settled” therefore accomplishes no more than having the nominee admit that the Supreme Court made a decision that has not yet been overruled. You’d learn more by searching Wikipedia.
Rather than fighting Judge Kavanaugh on what constitutes “settled law,” or debating the niceties of the “Ginsburg Rule,” senators this week should focus their questions on Kavanaugh’s prior opinions, speeches, and articles without trying (and failing) to pin him into whether he will vote to overturn Roe v. Wade. There’s plenty of material to probe on issues that matter, including his thinking on reproductive rights, environmental regulation, separation of powers, gun control, antitrust, and consumer protection laws. At the same time, senators should be prepared that like most well-prepared nominees before him, Judge Kavanaugh won’t travel beyond the text and context of what he has previously said or written, so any questions will need to be precise to serve any use.
More importantly, Judge Kavanaugh, like Chief Justice Roberts before him, will run circles around senators who attempt to debate the correctness of his DC Circuit opinions. The judge construes, debates, and explains the law for a living—and he’s one of the most talented craftsmen in his profession. Senators who have taken up the project as a hobby don’t stand much of a chance.
Finally, be prepared to hear a lot about judicial activism. The definition of “judicial activism” is in the eye of the beholder, but it generally is intended to apply to a judge who goes beyond the proper limits of the judicial role. A typical example of judicial activism is where a court overrules a statute enacted by a legislative body on flimsy (or erroneous) constitutional grounds. For conservatives, there is no better example of “judicial activism” than the line of cases leading up to and including Roe v. Wade, which conservatives would say invented a nonexistent constitutional right as a justification to overturn laws enacted by democratically accountable state legislatures.
For years, conservatives have successfully branded the term “judicial activism” as synonymous with “liberal.” In recent years, progressives have attempted to push back by citing cases decided in the “Lochner era,” a period during the early 20th Century in which the Court struck down workplace laws and regulations based on free market policy principles, as well as more recent decisions invalidating parts of the Voting Rights Act (Shelby County v. Holder), gun regulations (Heller v. District of Columbia), and campaign finance rules (Citizens United v. FEC).
You’ll likely hear Republican senators this week refer to judicial activism as the substitution of one’s personal beliefs over what the law requires. Judge Kavanaugh used similar language in his D.C. Circuit confirmation hearings, defining activism as when “a judge does not follow the law before him or her but instead superimposes his personal beliefs on the decision-making process.” Defining activism in this way accomplishes two objectives. First, it creates a straw-man judge against which nearly all well prepared nominees stack up favorably. Second, it defines all “personal beliefs” as separate from and irrelevant to one’s judicial philosophy on the odd assumption that a judge’s strongly held views about, say, the reach of the First Amendment are somehow not personal beliefs.
This entire debate about activism is largely pointless. In certain areas of law, conservatives have proven to be more willing than progressives to strike down legislation or regulation, and vice versa. But neither conservative nor progressive judges think they are imposing their so-called personal beliefs or policy preferences to ignore or sidestep what the law requires. Both sides act based on sincerely-held views about what the Constitution, acts of Congress, or federal regulations require. It is unfortunate that we cannot have an honest conversation about where those sincerely-held views part ways, and what those differences mean for the American people in the areas of the law that touch our lives. But that is where we are, and the events of this week are certain not to change that reality.
Michael Gottlieb is a former law clerk to Supreme Court Justice John Paul Stevens, and was associate White House counsel to President Obama. The views in this article are exclusively his own.