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.
READER COMMENTS
David Henderson
Oct 5 2018 at 5:10pm
Scott,
You wrote:
Fortunately, he has a track record as a federal judge in the second most powerful court in the United States that allows us to look at how he has done on that dimension. My casual impression is that he has done well.
My bigger concern is that he’s not that good on the Fourth Amendment and he seems to favor a fair amount of presidential discretionary power.
Mark Bahner
Oct 5 2018 at 5:29pm
I think one great way to see the Founders’ intent is to look at the percentage of total GDP that is federal government spending from the time of the Constitution to the present. I’m too lazy to find the specifics, but I’m fairly sure federal spending was never more than 5% of GDP, except in times of war, for the first ~100 years after the Constitution was written.
Another way to look at it would be to compare the total number of workers in the federal government versus total workers in state and local governments throughout history. That would probably be a much more difficult analysis, but I’m confident it would show the same basic result…the federal government is much, much larger than was intended when the U.S. Constitution was written, and the first ~100 years thereafter.
Scott Sumner
Oct 5 2018 at 5:50pm
Thanks David.
Mark, I believe it didn’t exceed 5% of GDP (in peacetime) until the 1930s.
Jeremy Goodridge
Oct 5 2018 at 7:07pm
Thank you so much for your sane, non-hyperbolic tone in this piece. So refreshing in this partisan age!! I personally think that Kavanaugh is too partisan, but I also dont think he will “kill” the constitution as Paul Krugman said in a column a few weeks ago.
James
Oct 5 2018 at 11:30pm
Scott,
Can you clarify your view on laws forbidding abortion as it relates to your utilitarianism, especially if you also favor laws forbidding mothers to hire people to kill unwanted newborns?
The benefit to a person from being born, plus the benefits to others from that person’s being born seem far greater than any loss to a woman that wants an abortion but is legally prevented from getting one.
But if I am wrong about that then the total gains and losses from allowing women to have their newborns killed should be just about the same as the total gains and losses from allowing women to have their preborns killed.
Mark Z
Oct 5 2018 at 11:50pm
I think Kavanaugh’s harangue was definitely a bad thing, but I also think it was entirely understandable from his point of view. It was, after all, Democrats in the senate and in the media that planned and orchestrated the assault on him; if he is indeed innocent, I imagine most people in his shoes would be as livid with the party whose leaders were largely responsible for things. Perhaps it would’ve been fairer to focus his ire on Diane Feinstein in particular instead, but I doubt that’d be seen as much more professional.
Now, what’s truly unforgivable is that Kavanaugh drank a lot while in high school and college. I saw that he joked about it too. A college student joked or bragged about how much he drinks? Now that’s front page news!
Billy Kaubashine
Oct 6 2018 at 10:09am
If Kavanaugh wasn’t partisan before the confirmation hearings, he would be a candidate for sainthood if he didn’t come away with a healthy distaste for the Democrats.
Assuming Kavanaugh is now (or was) partisan, lets hope he doesn’t allow it to taint his judicial reasoning, and only displays it off the bench (like Justice Ginsburg).
Alan Goldhammer
Oct 6 2018 at 10:15am
Good post on a difficult topic. Most of us will use our own confirmation biases to arrive at an opinion. I never thought that we would get an answer to what did or did not happen regarding the sexual assault. It looks as if the FBI background check was quite limited which is understandable since the White House is responsible for providing direction and that there were witnesses whose views were not in the final report.
Personally, I think Kavanaugh was untruthful on some high profile matters which would be disqualifying barring the partisanship that is currently present. He will be confirmed but the matter is likely to be reexamined if the Democrats capture either the House or the Senate in November.
Scott Sumner
Oct 6 2018 at 2:28pm
James, I’m agnostic on the question of optimal population size. Given my agnosticism, I’d rather it be decided at the individual level, rather than with coercive laws. Similarly I’m agnostic about drug use, gambling, prostitution, etc., and would rather they be decided at the individual level.
I do understand your argument, and it’s a good application of utilitarianism, but I’m not convinced we know enough about marginal and total utility to make this work. Also, you ignore the fact that if abortion is illegal it will still occur, but in ways that are far more dangerous and traumatic.
Finally, even if the average lifetime utility of a person is positive (itself questionable), that does not imply the average utility of an unwanted person is positive.
Mark, You said:
“It was, after all, Democrats in the senate and in the media that planned and orchestrated the assault on him;”
I’ve seen zero evidence for this claim. Was Kavanaugh and Ken Starr to blame for Clinton’s troubles in 1998? Your logic implies the answer is yes. Do you believe that? It’s interesting that Kavanaugh seems to have forgotten his role in that process.
I believe Ms Ford came forward on her own. An individual Democrat did likely leak the information, but you can’t tar an entire party for that fact. There was probably no vast conspiracy.
Mark Z
Oct 6 2018 at 9:49pm
It was the ranking Democrat on the judiciary who, after discovering the accusation, sat on it fir two months even as she had the chance to question Kavanaugh, then released it to sympathetic media only after the hearing to cause delay and score political points; that same senator likely had the accuser’s identity leaked likely to put her in a position of having to testify Democratic senators trotted out an accusation (Swetnick’s) as ludicrous and unsupported as the pizzagate conspiracy as though it were a serious one when questioning him, then tried to insist the FBI investigate said absurd accusation to justify further delay and a fishing expedition.
The Ford accusation (I don’t find the others even remotely credible) could’ve been dealt with straightforwardly. Senate Democratic leadership chose to turn it into a circus that made things far more painful than they needed to be. Nearly all of what was wrong with this saga is on them.
Mark
Oct 6 2018 at 9:50pm
*judiciary committee
TMC
Oct 6 2018 at 4:49pm
I think Kavanaugh did a pretty good job in handling this. If he were too dispassionate, it would look like he was guilty. He was not the judge here, but the person being judged. The smear job put upon him was disgraceful, and it isn’t partisan to acknowledge who the perpetrators were. David, above, has the best answer though. His record has been exemplary. Judge him on that.
Robert EV
Oct 7 2018 at 12:24am
So you’re saying he was acting. Exactly what Ford has been accused of doing.
The fictitious Andy Dufresne was not guilty.
People have varying responses to untruthful accusations, and truthful accusations. And heck, individuals even have varying responses depending on the content of the accusation.
Would Kavanaugh have ever tolerated such outbursts from a defendant in his court?
TMC
Oct 7 2018 at 1:43pm
Acting? Quite the opposite. There have been complaints that he did not hold his anger. He appeared very genuine.
“Would Kavanaugh have ever tolerated such outbursts from a defendant in his court?” I would guess he would. It was a reasonable reaction to all the slime thrown his way. At least you are one of the few who realize he was the one on ‘trial’ here and not the judge. His actions reflected exactly that.
BC
Oct 7 2018 at 1:25pm
“There are ‘conservatives’ who want to uphold the Constitution and ‘liberals’ who decide cases based on personal whim.”
I agree with Scott that partisan bias should be measured in terms of how consistently one applies one’s stated principles. However, it’s striking to me how many (at least facially) neutral statements now are viewed as (at least somewhat) “conservative”:
Judges should decide cases based on the text of the law, not what they wish the text was.
People should be treated equally as individuals, without regard to race or gender.
When accused of a crime, we should determine a person’s guilt or innocence based on the evidence presented about that specific person’s guilt in that specific case. The accused should not be held responsible for other people’s guilt in other cases.
Speech restrictions must be content neutral.
What I mean by “neutral statements” is that these used to be considered the general principles of any (classically) liberal society. People did not always adhere consistently to these principles, as Scott points out. Today, however, merely stating the principle can be considered “conservative”.
Separately, I agree there is ambiguity about how strictly to apply the 10th Amendment, mainly because it seems to conflict with the principle that judges should follow precedent. Many precedent-setting decisions conflict with the notion that the federal government’s powers are limited by enumeration. I am not aware of a generally stated principle about how to resolve this conflict.
Also separately, I agree that there is a conflict on the “conservative” side between “judicial restraint” in deferring to legislatures and adhering to constitutional text. The “judicial restraint” side seems to ignore, or at least diminish, the 9th Amendment, which confirms the existence of unenumerated rights, as well as the “privileges and immunities” clause of the 14th Amendment. The intra-conservative debate, being intra-conservative, seems to be a genuine debate about principle, not merely uneven application of principle with respect to policy preferences.
Robert EV
Oct 9 2018 at 11:17pm
This was never a general principle of any classically liberal society that I am aware of. It’s pretty darn new.
Following precedent is not a principle explicitly recognized by the Constitution, thus it is not the supreme law of the land. Judges can do it, but you can’t overrule the Constitution when doing so. That seems to me like a generally stated principle on how to resolve the conflict.
My main problem with Kavanaugh, and so much of conservative thought in general, is a fetishizing of tradition for tradition’s sake.
There is no rational basis* to consider tradition with regard to law. It’s enough to use the plain text, as anyone, from any time period, with enough diligence, can word a law unambiguously if they really, really want to. If they haven’t taken pains to do so, then it shouldn’t be assumed that they meant to do so, unless they explicitly state a catch-all clause for unforeseen circumstances. And if they do state such a catch-all clause, such as the ninth and tenth amendments, then those clauses shouldn’t be narrowly interpreted in light of practices at the time, but should only be narrowly interpreted in light of other catch-all clauses and the plain reading of other clauses of legally equal standing.
* – (There is a rational basis to consider prior rulings as precedent, and to consider what the current populace believes the law to be, as these two things do determine how people attempt to act in accord with the law.)
James
Oct 10 2018 at 3:30pm
Scott,
I’m aware that abortion will still occur even if it’s illegal. Just like how it is with infanticide today. I am guilty of assuming that you favor laws against infanticide though.
If you think the uncertainty around utility justifies being agnostic with regard to abortion, do you take the same agnostic position concerning the deliberate killing of newborns? Or do you believe that the utilitarian calculus becomes more tractable or otherwise different once the baby exits the birth canal?
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