Kavanaugh Hearings Begin

The confirmation hearings for the nomination of Brett Kavanaugh to the Supreme Court began this morning. In past confirmation hearings, I have found the committee members' opening statements to be largely worthless and often insufferable, so I won't watch it live. I am recording it. The arrest of the protesters might be entertaining to watch later.

There are news reports that the White House released portions of Judge Kavanaugh's opening statement, but the full text of what was actually released is not on the White House website nor on any news site I can find. Given the White House's frequent denunciations of media bias (often justified), one would think that the communications office would be eager to publish everything they release in full text so that the general public can read it unfiltered, but that does not seem to be the policy. The following excerpt has been widely quoted in the press:

"A good judge must be an umpire--a neutral and impartial arbiter who favors no litigant or policy. ... I don't decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge."

In criminal law, the Supreme Court's most important decisions are those interpreting the crime and criminal procedure related provisions of the Constitution. Other decisions generally affect only federal cases, not state, and they can be overridden by Congress if wrong. The constitutional decisions affect every case, and when wrong they stay with us and do damage for a very long time.

In constitutional criminal law, a "pro-law" orientation will favor the defense on occasion. In the Court's worst decisions, though, the defense position can only be reached by fabricating non-existent rules. This has been particularly true in Eighth Amendment cases.

The umpire analogy echoes Chief Justice Roberts' opening statement, and I expect similar criticism.

Some rules are indeed balls and strikes. The pitched ball enters the strike zone or it doesn't, and in close cases umpires must determine that fact as best they can. Whether a punishment is "unusual" in the sense that word is used in the Eighth Amendment simply requires looking at the historical and contemporary usage throughout the country. A punishment used in half the country is definitely not unusual in the Eighth Amendment sense. One abolished by statute in every state definitely is. How about one authorized and used occasionally in only two states? Close call.

Other rules are more like the "excessive celebration" rule of the NFL, prior to its recent cutback. How much celebration is "excessive"? It's a judgment call, though over time precedents build up to give us a better idea of what is allowed and what is not. The "unreasonable searches and seizures" rule of the Fourth Amendment is this kind of rule. That is why Professor LaFave's treatise takes up half a bookshelf.

This is why judgment matters. This is why fidelity to the original understanding of the Constitution, as important as it is, does not answer all questions. (I have never heard anyone on my side of the originalism debate claim that it does, though I have heard people on the other side attack the unmade claim in "straw man fallacy" arguments.) So of course a judge's attitudes and values do matter.

Kavanaugh Hearings Begin curated from Crime and Consequences Blog