I was reasonably satisfied with Judge Kavanaugh’s nomination to the Supreme Court. I thought he was a smart, fair jurist. Although I did not agree with all of his lower court decisions, I appreciate that evaluating a judge based on whether I agree with his ultimate outcomes, as opposed to the strength and coherence of his legal reasoning, is detrimental to rule of law principles.
The mixed reactions, on many aspects of the way we approach Dr. Blasey Ford’s allegations against Judge Brett Kavanaugh, track either politics or ideology in a way that should give every one of us pause.
At one end of the spectrum is Senator Mazie Hirono, who told men to “shut up and step up … do the right thing, for a change,” after Dr. Chrstine Blasey Ford’s allegations against Judge Brett Kavanaugh came to light. Blasey Ford released her story weeks after her allegations had been sent to Senator Dianne Feinstein, and days after the Senate finished its hearings on whether to confirm Judge Kavanaugh to the Supreme Court. Senator Hirono’s view is that, despite the impossibility of gathering meaningful statistics on how many reports of sexual assault are false, a woman is automatically to be believed regardless of evidence, and men, by virtue of their membership in a particular group, are all guilty by association and cannot contribute to meaningful dialog on this topic.
At the other end of the spectrum is Senator Mitch McConell, who wants to “plow through” with Judge Kavanaugh’s confirmation despite a credible accusation of sexual assault, who appears to categorize Dr. Blasey Ford’s coming forward as a partisan tactic to delay Judge Kavanaugh’s confirmation vote until after the midterm elections, who sees no need for further investigation on this topic. And, of course, there’s Donald Trump, who essentially called Dr. Blasey Ford a liar for failing to report her allegations 35 years ago, to either “her loving parents” or law enforcement.
The best case to both test the scope of the Supreme Court’s decision in Masterpiece Cakeshop and to answer its unresolved legal questions is, indeed, a new version of Masterpiece Cakeshop. Last month, baker Jack Phillips sued the Colorado Civil Rights Commission for another ruling against him and his bakery. Although Phillips received a narrow win in the original Masterpiece Cakeshop, the free speech claim in this new case is somewhat stronger, and the legal landscape has been altered in Phillips’s favor by the original case. Because this new case presents a free speech claim that can easily be distinguished from the sale of interchangeable goods and services, a decision in favor of Phillips is unlikely to seriously undermine civil rights and anti-discrimination laws.
The job of a Supreme Court Justice is replete with contradictions. The Court is accountable to the people, and the Senate uses its “advice and consent” power to approve nominees. However, the Court must be independent of the people, rendering judgment based on its interpretation of the law, instead of serving a political master or agenda. The Court must generally defer to the democracy, allowing elected legislators to dictate policy. But the Court must unflinchingly champion our constitutional rights, upending democratic will based on vague constitutional amendments that are subject to multiple interpretations.
The difficulty of navigating these contradictions, which focus solely on the abstract roles a Justice must play, is compounded by the task of deciding the substance of specific cases, which are complex, multi-faceted, and often technical. We need experts on the Court – experts at reconciling competing principles, experts at developing a sound, consistent judicial philosophy that can apply timeless constitutional rights to a changing society, and experts at understanding legal texts, structures, and systems.
The process of approving a Supreme Court Justice should therefore be targeted to finding these sorts of legal experts, with sound judgment and impeccable analytical skills. We need Justices who understand that their decisions have human consequences, but who do not overly impose their own political sensibilities onto these consequences. Instead, the Senate confirmation hearings appear, based on the grandstanding of Senators on both sides of the aisle, to be a way of pandering to the basest instincts of the very people from whom the judiciary is designed to be independent.
To some extent, the political pandering of the confirmation hearings is due to the fact the Court has appropriated a great deal of power, interpreting the Constitution to include provisions far beyond the text. To some extent, our intractable partisan hackery problem is due to increased attention to the Supreme Court by citizens who either misunderstand or willfully ignore the role of the Court. Neither Democrats nor Republicans at this point want to unilaterally appoint a Justice whose jurisprudence does not well align with the general sentiment of their base. I propose a modest solution that could change the tenor of both the Senate confirmation hearings and the public’s thinking about the role of the Court.