Op-Ed: In Brett Kavanaugh Supreme Court confirmation hearings, here's what to expect

On Tuesday, September 4, I’ll gavel in the beginning of a days-long hearing before the Senate Judiciary Committee to consider the nomination of Judge Brett Kavanaugh to serve as a Supreme Court Justice. It will be my fifteenth Supreme Court hearing as a member of the committee and my second leading the process as chairman. I’ve participated in the hearing of every sitting Supreme Court Justice, so I’d like to share some insight into how the process will unfold.

 

Ideally, a Supreme Court hearing is used to examine the qualifications and character of a nominee. It’s an opportunity to question the nominee about his or her jurisprudence. But this is Washington after all. With the cameras rolling and millions tuned in, some may try to turn this important evaluation into a political spectacle. Here are a few things to remember:

 

The Ginsburg Standard was established in 1993 by President Bill Clinton’s Supreme Court nominee, Justice Ruth Bader Ginsburg. During her hearing, she said, “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

 

That commitment to impartiality has been reiterated by Supreme Court nominees since. But that hasn’t stopped senators from trying to improperly extract promises from nominees on policy positions.

 

Expect senators to be crafty in their phrasing of essentially the same question: How will you rule on a given case? How would you have ruled in a past case? Was a case correctly decided? Will you vow to uphold a certain precedent?

 

They are all asking for insight into a case that could come before the court in the future. It would require a nominee to pre-judge potential future cases without having reviewed the specific facts, all in exchange for a confirmation vote. This would undermine judicial independence. And it is entirely improper for a senator to vote for or against a judicial nominee, in exchange for the nominee’s promised vote on a future case.

 

Nobody would want to go before a judge who’s already promised a senator the outcome before reviewing the case. It wouldn’t be fair.

 

Personal opinions should have no role in the decision-making process of a judge. What judges might think of a law, a policy, an elected official, or a political situation should have no bearing on their job. A judge’s role is to interpret the Constitution and uphold the law. It’s not to be a politician.

 

Senators will ask if a preferred political outcome is appropriate, they will ask moral and ethical questions with obvious answers and they will try to goad the nominee into revealing their thoughts on hot-button issues. This improperly politicizes the confirmation process. Expect the nominee to make clear that he cannot divulge such information so as to remain a neutral arbiter in future cases.

 

Guilt by association is universally understood to be an unfair manner of judging an individual’s character.

 

I doubt anyone would want to be judged by the behavior of all of their current and former colleagues. That would certainly be true of the senators asking the questions. It would be unfair to them, and it would be unfair to the nominee, too. It’s also especially important to remember for lawyers who are tasked with representing their clients to the best of their abilities, however unlikable or unpopular the client may be.  

 

Fights about the process by which the committee has so far reviewed Judge Kavanaugh’s record have consumed the debate surrounding his nomination. Shortly after the President nominated Judge Kavanaugh, Democrat Leader Chuck Schumer pledged to do everything he could to stop it. True to his word, he and members of his party have set out to manufacture faux scandals about access to documents from Judge Kavanaugh’s time as a public servant.

 

Conveniently omitted from their arguments, though, is the fact that more people have more access to more material to evaluate Judge Kavanaugh than for any previous nominee. In fact, the Judiciary Committee has received more pages of executive branch material than for the previous five Supreme Court justices combined. But it would never be enough, because for them, it’s not about the documents, it’s about delay.

 

The hearing will surely be used as a chance to air grievances, but rest assured: this has been the most transparent nomination process in history.

 

We will ask Judge Brett Kavanaugh many tough questions while he’s before my committee. That’s legitimate. He should be asked. If confirmed, he will serve for a generation, so we cannot take this duty lightly. But political cheap shots, innuendo and character assassination are no ways to evaluate a nominee.

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