From what we’re now learning about Brett Kavanaugh, it’s clear he thinks indicting a sitting conservative president would be a disaster. Whether he feels that way about a sitting liberal pope—in this case, Francis—isn’t so clear. President Trump’s pick to succeed Anthony Kennedy on the Supreme Court has written a great deal about how our system needs to defer to presidential power, and it’s also apparent that he’s a charter member of the Antonin Scalia/Pope Benedict Society for the Preservation of Patriarchal Norms (the Older, the Better).
One newer norm that Kavanaugh looks poised to uphold is that of answering no substantive questions during his upcoming Senate confirmation hearings. A newly released study documents that Trump’s previous court pick, Neil Gorsuch, set the record for the highest percent of questions evaded during his hearings. Kavanaugh may well try to shatter Gorsuch’s record, but if the senators on the Judiciary Committee allow him to get away with that, they’ll not be doing their jobs.
The business of the Supreme Court is policymaking—that is, politics. It ratifies, modifies, or rejects the laws our elected officials enact, and in so doing, advances, confirms, or sets back the norms that we elect our legislators and chief executives to codify. As the replacement for the Court’s longtime swing vote, Kavanaugh, not just a jurist but a longtime Republican operative, would have it in his power to repeal reproductive rights, uphold Republican gerrymanders, rule for corporations over workers and the claims of the environment, strike down the Affordable Care Act, and protect the man who nominated him from investigation and prosecution. These are all momentous questions of public policy, and as senators are presumably in the business of creating public policy, they need to ask him where he comes down on these issues.
In particular, the two pro-choice Republican senators, Maine’s Susan Collins and Alaska’s Lisa Murkowski, should announce—if they’re really serious about preserving women’s right to choose—that they won’t vote to confirm Kavanaugh unless he declares publicly that he won’t vote to repeal Roe v Wade. Democratic Senators Joe Donnelly, Heidi Heitkamp, and Joe Manchin should announce they won’t vote to confirm Kavanaugh unless he publicly declares he won’t vote to strike down the Affordable Care Act. The public policy questions involved here are too fundamental to give Kavanaugh a pass on.
This is not a course of action that senators have taken before, at least that I’m aware of. But it should be precisely this course that the many groups opposing Kavanaugh’s confirmation demand of the senators who’ll cast the deciding votes. It should be the course that Democratic Senate Leader Chuck Schumer demands of his colleagues, and that Dianne Feinstein, the ranking Democrat on the Judiciary Committee, sets as the norm when or before the hearings commence.
Americans elect their legislators and executives based on those candidates’ positions on fundamental questions of national direction. Now that the Supreme Court may be handed over to a new majority that could well reverse or retard fundamental national directions, the positions that Kavanaugh would take if confirmed are no less important than the positions of a candidate for president. The only way that he could be compelled to reveal those positions would be if Collins, Murkowski, Manchin, & Co. announced he wouldn’t get their vote if he evaded answering where he stood. Americans demand that standard of their candidates; our elected officials should demand no less of a nominee who could yank the nation back to a radically less egalitarian time if confirmed as the next justice of the Supreme Court.