MAENNER: Kavanaugh hearing has misplaced focus

With the balance of power in the House of Representatives and Senate less than two months away from being decided, the grandstanding and partisan bickering which has become commonplace in both houses of Congress has entered its way into the Brett Kavanaugh confirmation hearing, morphing it into a political spectacle.  

In fact, the large proportion of media coverage regarding the nomination hearings has mostly focused on the drama surrounding the White House’s late document dump, the perjury charge currently levied at Kavanaugh and the constant barbs and jabs that have been thrown across the aisle during the proceedings. But through the political sideshow that has substantially marred the discussion of important issues at the heart of his fitness to serve on the Supreme Court, Kavanaugh has largely been able to stick to the script of previous nominees to the Court: say nothing. 

So far throughout the proceedings Kavanaugh has largely regurgitated the greatest hits of his recent predecessors such as Chief Justice John Roberts and Associate Justice Elena Kagan on questions regarding the law and how he sees the role of a judge. In fact, Kavanaugh has even gone as far as to repeat Roberts’s umpire analogy in emphasizing a judge’s duty to be a neutral arbiter of the law and has for the most part stuck by the words of Kagan by avoiding “thumbs-up or thumbs-down” judgements on any particular case. 

But, the most concerning aspect of Kavanaugh’s nomination is his insistence that he is an originalist who takes into account “the original public meaning of the constitutional text.” For quite some time now, originalism has become the preferred judicial philosophy on the Right, especially in response to the creeping judicial activism perceived as happening on the Left over the course of the last half century in cases such as Roe v. Wade and Obergefell v. Hodges.

Even though conservatives point to progressive justices as being the activists on the court, the truth of the matter is that originalism itself is inherently activist because it is inherently subjective. Saying that a judge must take into account the original intent or the original public understanding of a law at time of passage may sound great in theory, but it forces a judge of the law to also play the part of historian and decipher the intricacies of people and societies at the time of a law’s passage. The consequence of this is not to separate a judge’s innate biases and opinions from the law, rather it serves the exact opposite ends of only further entangling a judge’s personal beliefs into their decisions by forcing them not only to interpret the law, but also reconstruct the historical significance surrounding it.  

In his book titled, "The Living Constitution," David Strauss talks about the consequences of a Supreme Court over the course of history abiding by originalist orthodoxy, such as the Bill of Rights not being applied to the states and Brown v. Board of Education not being ruled in favor of desegregation. Some of these glaring weaknesses in the judicial doctrine have been met by proponents with twisted logic and even outright abandonment in some instances regarding explaining away decisions in crucial seminal cases. 

In explaining away the inconsistencies between originalist orthodoxy and the decision made in Brown during the confirmation hearing, Kavanaugh pointed out that the Fourteenth Amendment includes "equal protection" guaranteed for all citizens, yet conveniently neglected to account for the different public understanding of the amendment at its time of passage. In fact, in its decision on Brown, the Warren Court conceded that the original understandings of the Fourteenth Amendment did not support its holding, saying, "we cannot turn the clock back to 1868 when the Amendment was adopted." 

Because of the difficulty inherent in reconciling an originalist doctrine with common sensical decisions in many cases — leading to what Strauss considers to be “implausible results” — former Justice Antonin Scalia is famous for stating that he was “an originalist … not a nut.”  But for a man who claimed the view of the Constitution as a living document "eliminated the whole point of a Constitution," what are we left with if the alternative is untenable in a comprehensive sense? While it may be useful for those on the Left and Right to guard against ruffling feathers in a confirmation hearing, as a judicial doctrine it is nothing but a politically correct way of viewing how the law should be interpreted, which on its face may be aesthetically pleasing, but ultimately at its heart is substantially meaningless.

Hunter Maenner is a School of Arts and Sciences junior majoring in criminal justice and political science. His column, "Maenner's Musings," runs on alternate Mondays.


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