Publisher's Note: One of the most significant things you can do to promote Liberty is to support our mission. Please make your gift to the 2024 Patriots' Day Campaign today. Thank you! —Mark Alexander, Publisher

July 12, 2018

Anthony Kennedy Answered Tough Questions. Judge Kavanaugh Should, Too

Article II, Section 2 of the Constitution requires the president to “nominate … by and with the advice and consent of the Senate … judges of the Supreme Court.”

Article II, Section 2 of the Constitution requires the president to “nominate … by and with the advice and consent of the Senate … judges of the Supreme Court.” With his nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy, President Trump has done his part. But if recent experience is any guide, the Senate has no intention of doing its part.

If Article II’s “advice and consent” directive means anything, it means that the Senate must undertake genuine due diligence — not just going through the motions of interviewing the nominee but probing deeply into his legal views. How can senators make up their minds on whether to invest Kavanaugh with the immense power that comes with a seat on the Supreme Court unless they make it their business to understand what he would do with that power?

Yet when the Judiciary Committee convenes this fall, everyone expects Kavanaugh to follow the unedifying example of Neil Gorsuch, Elena Kagan, Sonia Sotomayor, and other recent Supreme Court nominees. His handlers will coach him to respond to questions with courteous strings of platitudes, delivering mini-lectures on Supreme Court doctrine and displaying his command of legal history. If senators attempt to draw him out on this or that contentious issue, he will assure them that he respects existing precedents as “settled law” — while simultaneously pledging to approach every issue with a wholly open mind. Under pressure to answer specific questions, he will invoke the “Ginsburg rule” or “take the judicial Fifth,” claiming that judicial impartiality prevents him from offering any hint of how he might rule in any future case.

“Ever since the Senate refused to put Judge Robert Bork on the court in 1987, there has been an assumption that honest responses would torpedo a nominee’s confirmation,” law professor Eric Segal wrote last year in the Los Angeles Times. Nominees learned from Bork’s experience that it was safer to stonewall or sidestep than to give revealing replies to pointed inquiries.

Except that it isn’t true. Bork’s experience did not make it impossible for Supreme Court nominees to testify candidly about thorny issues and still get confirmed. For proof, look no further than the very judge Kavanaugh has been chosen to succeed.

When Kennedy appeared for his confirmation hearings in 1987, emotions were still running high over Bork’s defeat. Yet Kennedy didn’t duck tough questions or resort to vague boilerplate when he was asked about divisive topics. He repeatedly gave direct answers to direct questions — including questions it might have been safer to evade.

When Sen. Joe Biden challenged him on whether there is a “marital right to privacy protected by the Constitution” — a controversial issue at the time — Kennedy answered plainly: “Yes, sir.”

What should the Supreme Court do, Kennedy was asked, when faced with a law that is immoral or unpopular, but not unconstitutional? He didn’t hesitate: “The court’s role is to sustain and to enforce that law.”

Was the Miranda decision rightly decided? “It is not clear to me that it necessarily followed from the words of the Constitution,” said Kennedy.

During three days of confirmation hearings, Kennedy expressed skepticism about relying on the original intent of the Constitution’s framers. He denied that judges are empowered “to issue any decree necessary to achieve a just society.” He said the Warren Court’s sweeping changes in criminal law had imposed “a heavy cost” on American communities.

More than once Kennedy gave senators answers they didn’t agree with. He knew only too well that they could sink his nomination, as they had sunk Bork’s a few months earlier. That didn’t dissuade him from engaging with them candidly. And his candor didn’t dissuade the Senate from confirming him — unanimously.

Kennedy’s hearings, far from trivializing the constitutional requirement of “advice and consent,” showed it to be meaningful and valuable. There is no reason the Kavanaugh hearings can’t do the same. Senators expected Kennedy to answer tough questions. They should expect no less of his successor.

Jeff Jacoby is a columnist for The Boston Globe.

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.