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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

The Best Parts of the Kavanaugh Hearing

A great set of colloquies on originalism, the Federalist, and human imperfection.

I confess that I have previously mocked the idea that judicial confirmation hearings can be a good tool of public education, and I might have been too hasty to do so. This afternoon I happened to tune in to a discussion between Senator Mike Lee and Judge Brett Kavanaugh that highlighted very well several important principles of constitutional law. It just might be worth showing to entering law students.

First, there was a colloquy in which Judge Kavanaugh explained that he is a "public meaning originalist," (contra Eric Posner), and also provided some useful clarifications about what originalism is:

(Towards the end of the explanation he also mentioned the "liquidation of the meaning by historical practice," a topic that is of course near and dear to my heart.)

Second, Senator Lee asks Judge Kavanaugh: "Do you have a favorite among the Federalist Papers?" which causes Judge Kavanaugh to break out into a grin before giving a long answer synthesizing Federalists 10, 37, 39, 47, 51, 69, and 78.

(And another shout-out to "liquidation"!)

And while I had been planning to post only those two clips, I was also caught by a final exchange on human fallibility and constitutional structure.

I was already very pleased by the nomination of Judge Kavanaugh. Now I am even more so.

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  • Rev. Arthur L. Kirkland||

    I was already very pleased by the nomination of Judge Kavanaugh.

    For stale-thinking right-wingers with a taste for authoritarianism, what's not to like?

  • Variant||

    If by authoritarians you mean those who would legislate from the bench and see the constitution as a document that can be changed on a whim in accordance with the latest cultural fads, you misspelled "left-wingers".

  • Sarcastr0||

    He's not a judicial minimalist; that's not the Federalist's way.
    I expect he's going to try and overturn a lot of precedents, like Gorsuch has already put forth in his opinions. Alito and Thomas will go along.

    The question remains how much stomach Roberts has for radical change backwards.

  • TwelveInchPianist||

    "The question remains how much stomach Roberts has for radical change backwards."

    I know, right? He already went wobbly and overturned the precedent that supports affirmative action.

  • jph12||

    "He's not a judicial minimalist; that's not the Federalist's way."

    You make Jon Snow seem knowledgeable.

  • NToJ||

    Do you think he's a minimalist?

  • jph12||

    Don't know. Don't care. That's not the part that makes Sarcastr0's statement so stupid.

  • Sarcastr0||

    So the substance of my post is correct, but I got a name wrong so it's time for substanceless insults.

  • jph12||

    No the substance of your post isn't correct you fucking moron.

  • Sarcastr0||

    Your response to NToJ seems to indicate otherwise.

  • Rev. Arthur L. Kirkland||

    The bigger question is how much judicially approved or created backwardness and intolerance the better elements of our society will tolerate before enlarging the Supreme Court when the yahoo voices falter electorally.

  • Greg J||

    Wrong precedents SHOULD be overturned

    His proper job is to enforce the written Constitution and the written laws, not the dictates of unelected and unaccountable thugs

  • Sarcastr0||

    By which I presume you mean the Constitution as you believe it is, though you lay claim to the Platonic True Constitution, before which all else is authoritarian usurpation.

  • Brett Bellmore||

    Indeed, law is the only profession I know of that, once a mistake has been made, enshrines it rather than rushing to fix it. If engineering behaved that way, we'd still be building square arches and using 3 as a substitute for Pi.

  • mad_kalak||

    Engineering, as it pertains to functional design, will continue with less than optimal designs because we, as human beings, become used to things in a certain way, and via path dependency, it's easier than trying to retrain everyone. Think of the QWERTY keyboard.

  • Bob from Ohio||

    "overturn a lot of precedents,"

    The GOP dominated court in 40 years has overturned next to nothing of significance. There is no reason to think they will now.

    The new guys are bland Establishment lawyers who don't want the frowns they will get at reunions, just like Roberts.

  • Sarcastr0||

    You want radical change on the court, so pardon me if I take your assurances of good order with a bit of skepticism.

  • Joe_dallas||

    As oppossed to Sotomayer who actively supports increased racial discrimination - shuttee & ricci

  • Sarcastr0||

    Weird you didn't cite the other liberals on the court, Joe. Does something cast a shadow over Sotomayor specifically?

  • y81||

    Wow, that is the kind of incisive analysis that will definitely change the mind of Mr. Baude and his readers.

  • Rev. Arthur L. Kirkland||

    The Volokh Conspiracy abandoned persuasion for polemicism long ago, with a telling shroud of obsequiousness added during the Trump era of Republican politics and movement conservatism.

  • Smooth Like a Rhapsody||

    Typical Artie one-note comment.
    But I will agree that Kavanaugh is an uninspiring choice. Maybe boring is good, but my preference would have been for a non-careerist judge like Rafael Cruz; but, he's got his hands full with fighting an Irish guy named, "Beto", so...

  • Smooth Like a Rhapsody||

    FYI re: Arthur and his snark:
    Will Baude was raised by two pretty leftish law professors. I had his dad as a prof. Great guy. Great prof. Respected and liked by just about everyone. RIP.

  • Bob from Ohio||

    "FYI re: Arthur and his snark:"

    I miss the "Ignore Poster" tab from the WaPo years. Used against one guy ever. Guess who?

    I would like to remind everyone that you do not HAVE to engage Kirkland.

    Ignore him and he will eventually get bored.

  • mad_kalak||

    There is worse....

    *sends up the Hiln signal*

  • santamonica811||

    Elections have consequences. He'll be a justice to the right of Scalia, which will make social conservatives very happy and liberals and moderates very unhappy.

    The only reason to not vote for him is if he lied in his original hearings (re torture, etc), and lied again here on those same issues. But since the administration is consciously acting to keep the information from senators and from the public, there is no practical was to determine this. (I note that judge Kavanaugh is noticeably silent in terms of him declining to publicly ask for release of All documents, since--he would argue--that they would prove that he testified honestly before-and-now.)

    Elections have consequences. Maybe when Roe is overturned (either directly, or by a thousand incremental steps), more people will get off their fat asses and make it to the polls on election days.

  • Eddy||

    "more people will get off their fat asses and make it to the polls on election days"

    The Democrats are the party of apathetic non-voters?

  • Variant||

    I don't think he'll overturn Roe. He's an originalist which should make all citizens who value a society based on laws rather than whims happy.

  • Smooth Like a Rhapsody||

    Do you think Roberts will be a 5th vote?
    At what point does Roe become more "law" than "whim"?

  • santamonica811||

    Smooth,
    For directly overruling Roe? Doubtful...he seems to place a pretty high priority on following precedent. I'd say 10% chance.

    For cutting away most of the rights that Roe (et al) provides women in regards to controlling their own bodies? Very high likelihood. Roberts is certainly anti-choice, and I think that he'd find most state restrictions to be reasonable.

    We all will, of course, have the chance to see first-hand, in the next several years. Alas.

  • Rev. Arthur L. Kirkland||

    We appear destined to live in interesting times.

    I sense that a Justice Kavanaugh would be inclined for several reasons to whittle abortion rights, expand gun rights, and generally flatter the right-wing line while claiming to be a mere umpire.

    The Court's conduct is likely to amplify an increasing enthusiasm for harder-edged partisanship in the Democratic Party -- resembling what occurred in the Republican Party with the Tea Party -- and the consequence could be an enlarged Court on which Justice Kavanaugh would have the opportunity to author a series of impassioned dissents.

    I would find the corrosion of the Democratic Party by extremists to be nearly as unattractive as the corrosion of the Republican Party has been, but I would enjoy observing Justice Kavanaugh spending decades in dissent.

  • ||

    Sen. Cruz noted the many points of agreement between Judges Garland and Kavanaugh..here's some disagreements: https://www.eenews.net/stories/1060089225

  • Eddy||

    "In 2014, Garland joined a panel opinion rejecting SeaWorld's challenge to the Labor Department's finding that it violated workplace safety laws by exposing trainers at its park to killer whales with a history of violence. The case stemmed from the 2010 death of Dawn Brancheau, a 40-year-old trainer at SeaWorld's Orlando park who was dragged into the pool by Tilikum, a 12,000-pound bull orca, during a performance. Kavanaugh dissented, largely adopting SeaWorld's argument that the Labor Department had impermissibly regulated sport.

    ""Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus," Kavanaugh wrote. "But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury.""

    To be fair, if you're dealing with whales who have killer in their name, you're presumably not under the illusion that they're harmless.

  • bernard11||

    Well, JFTR, orcas are not actually whales, FWIW, which may not be much.

  • ThePublius||

    Yes, they are whales, 'toothed whales,' to be precise, "a parvorder of cetaceans that includes dolphins, porpoises, and all other whales possessing teeth, such as the beaked whales and sperm whales."

    (wikipedia)

  • gormadoc||

    If it's a mammal that lives underwater all the time and it's not a manatee or dugong, it's a whale.

  • John Ashman||

    Where is "regulate worker safety" in the Constitution?

  • JoeGoins||

  • Scarecrow Repair & Chippering||

    Someone has a fine sense of humor.

  • John Ashman||

    Pretty mediocre stuff and clearly not Jeffersonian in any way.

  • Smooth Like a Rhapsody||

    I'd stay tuned if I were you. I'm pretty sure that, once those missing emails surface, we'll find all about Kavanaugh's slave mistress.

  • John Ashman||

    I am only for this, because I want Thapar. First Indian American on the Court, superb originalist not afraid to call himself that. Not as stuck on "precedent" and "history" and more likely to be an activist in defending the Constitution than Kavanaugh, and easier to confirm.

  • Bob from Ohio||

    "Pretty mediocre stuff "

    Platitudes are the safe choice in the hearing theater.

    Everybody learned the Bork lessons. Avoid anything remotely controversial.

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