By Scott Sumner
A few weeks back I did a post where I expressed some mild concerns about possible partisan bias in Supreme Court nominee Brett Kavanaugh. Recent events got me once again thinking about that issue.
Kavanaugh recently indicated that he “cringed” when he recalled some of the activities of his youth. The NYT reports that he has a similar reaction when recalling things he said just a few days ago:
“You can count on me to be the same kind of judge and person I have been for my entire 28-year legal career,” Judge Kavanaugh wrote in an opinion piece published in The Wall Street Journal. He acknowledged that he had regrets about some of the things he said in his testimony last week before the Senate Judiciary Committee, but did not specify what they were.
“I was very emotional last Thursday, more so than I have ever been,” he wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.
In fairness, I sometimes cringe at what I wrote in blog posts when I was Kavanaugh’s age. We tend to get wiser as we get older.
I did not see Kavanaugh’s recent Congressional testimony, but did read the transcript. I was concerned about the partisan tone of some of his remarks, which tended to reaffirm my earlier reservations about the nominee. In particular, Kavanaugh seemed quite contemptuous of the Democratic Party. Put aside your view on whether that contempt is deserved (I have a rather low opinion of both parties), and consider the role of the Supreme Court. While they handle a variety of cases, some of the most important are public policy initiatives where the Democrats and Republicans have differing views. It’s important that justices not let their personal views on politics impact how they decide these cases. Their role is sort of like a referee in a basketball game. I’m glad to see that Kavanaugh understands that his testimony seemed to indicate some pretty strong political bias, and that this was unfortunate. Hopefully he will try to avoid letting his personal views impact his future legal decisions—but that’s not easy to do.
Some people have a very simple view of the law. There are “conservatives” who want to uphold the Constitution and “liberals” who decide cases based on personal whim. That misses a lot of real world complexity. Robert Bork tended to favor having the courts defer to the legislature in the vast majority of cases. Other conservatives are more activist, pointing to the fact that the Constitution seems to strictly limit the scope of the federal government to a few well-defined areas:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Of course there’s plenty of ambiguity here, and it’s not at all clear to me how strictly we should apply the 10th amendment. Does this mean Obamacare is unconstitutional? How about federal laws banning marijuana? Both types of legislation would have been frowned on by the founders.
My fear is that the ambiguity of this important document opens the door to political bias. Thus left-leaning justices may be more likely to approve legislation such as Obamacare, whereas conservatives may be more favorably inclined to federal laws banning marijuana use. For me, the most important attribute of a good justice is not his or her specific philosophy on how strictly the Constitution should be enforced, but rather their willingness to apply that philosophy in a politically neutral fashion. The advantage of the Bork approach over the more activist approach (conservative or liberal) is that it’s less prone to political bias. But that doesn’t mean I’d necessarily oppose a more activist judge, as long as they applied their principles to restraining both “Democrat” and “Republican” forms of federal activism, without consideration of their personal opinion of the legislation.
Unfortunately, the Supreme Court seems to be becoming increasingly politicized, which reflects a broader decline in American politics. To be sure, things have been worse, as when FDR tried to pack the Court in 1937. But they’ve also been considerable better. There are many examples during the second half of the 20th century where Presidents appointed justices that ended up ruling differently from how the President had hoped. The entire process has now become much more political, with extensive efforts being made to ensure that the justice being appointed will decide cases in the “proper” way, i.e. in support of the political party that nominated him. That’s unfortunate.
This is part of a broader politicization of society. As older faculty members retire, there are now entire academic departments at major universities that simply refuse to hire anyone without the “correct” political views. The TV news media is increasingly politicized. People have started skipping Thanksgiving dinner because they disagree with the politics of their fellow family members (something that would have been very unusual when I was younger.) Even if there are powerful forces pushing in this direction, we should never adopt a fatalistic view that nothing can be done. If we don’t constantly push back against the politicization of all our institutions, then we are likely to end up as a banana republic.
PS. Of course I’m aware that there are other aspects to the Kavanaugh controversy, and I have still have some concerns about the nomination. But I don’t think I have much to add that hasn’t already been said.
PPS. As an example of setting aside your personal views, I agree with Bork’s view that the Court overstepped its power in Roe v. Wade, even though I personally oppose laws banning abortion.