Opinion: The Kavanaugh hearings should have constitutional inquiry
Next month, Michiganians will get the chance to experience a television spectacle. Network and cable stations will bring to their living rooms hours upon hours of U.S. Senate confirmation hearings. The confirmation will involve questioning Brett Kavanaugh, President Trump’s pick for the Supreme Court. At stake will be the Senate’s vote to approve or reject Kavanaugh’s nomination.
In these public hearings, senators’ questions can follow one of two paths. They could use their time to grandstand, making grandiose speeches thinly-veiled as inquiries. Or they could pose “gotcha” questions to trap Kavanaugh into no-win responses.
If they do this they would cheapen our Constitutionally-mandated procedures for selecting Supreme Court justices. This approach would lend itself to scare-mongering, salacious innuendo, and other appeals to our worst instincts.
A better way exists. Senators could use their time to make substantive inquiries about the the Constitution itself, focusing on two points.
First, senators should ask Kavanaugh to give a job description for judges. Article III of the Constitution declares that “[t]he judicial power of the United States, shall be vested in one Supreme Court” as well as lower federal tribunals. The Supreme Court’s job, then, is to exercise the judicial power. How would Judge Kavanaugh define that authority?
Asking this question would help senators and the American people to better know if Kavanaugh understands separation of powers. According to the Constitution, judging is a governmental function substantively distinct from legislating or executing. Legislating makes law and executing enforces it. Judges do neither.
Instead, they resolve disputes between litigants by means of the law. Put another way, they resolve disputes by interpreting how the Constitution or statutes should apply in the particular circumstances before them. Can Kavanaugh articulate the distinction between these powers?
Second, senators should ask him about how he approaches interpreting the Constitution itself. Generally, what is the first place he will look to glean the Constitution’s meaning? His answer will say much about his respect for and understanding of our governing document. He then would best seek to understand the law as it was publicly understood when passed, thereby respecting the rule of law and the will of voters.
On specifics, senators could test his approach on particular clauses of the Constitution. Through this, senators could get a feel for whether Kavanaugh consistently applies his own principles and whether those principles constitute a fair reading of our nation’s governing document.
None of these questions would let Kavanaugh off easy. Senators can and should rigorously pose them and demand thorough responses.
I hope that senators opt for the route of Constitutional inquiry.Doing so would benefit not only the United States Senate, but the American people, the Supreme Court, and the Constitution that “We the People” ordained, established, and to this day, maintain. That would be a spectacle worth watching.
Adam Carrington is assistant professor of politics at Hillsdale College.