The Kavanaugh Senate Confirmation hearings have appeared in the news non-stop for the past few weeks. While his hearings have mainly sparked debate on the issue of sexual assault and on Kavanaugh’s behavior in said hearings, there is actually a larger problem that should be discussed. Kavanaugh has chosen to remain silent on many issues, often refusing to answer questions or state his opinion on a particular case. At other times, Kavanaugh has simply remained extremely vague in his answers, stating for example, that he accepts “Roe v. Wade” as precedent. He did not, however, state whether he would overturn the decision if he were to take the bench. This behavior is frustrating to viewers like myself, and likely to Senators as well, but it is not specific to Kavanaugh. In fact, such vague answers are typical of most Supreme Court nominees, which leads me to the problem at hand.
The Senate Confirmation Hearings are and always have been a strategic game. For the most part, it seems that it doesn’t even matter what the nominees say in their hearings. As long as they do not say something really stupid, like admitting that they allow their political preferences or religious beliefs to guide their judicial decisions, then they will get through. Most nominees get through by holding their tongue.
They claim that they will not answer questions about their specific positions, because they need to remain impartial as a Supreme Court Justice, or as any kind of judge, and instead wait until they hear or read the case themselves to do so. But this is not the whole truth. Nominees really want to keep as many people on their side as possible, and to take a stance, especially on a controversial case or issue, would alienate those who hold the opposite position. In many cases, this would mean alienating an entire political party in the Senate, and ensuring that he or she does not become the next Supreme Court Justice.
What this implies, however, is that almost anyone can get through the hearings. The hearings are basically rendered pointless, because everyone can anticipate what the outcome will be, so long as the nominee sticks to the full-proof strategy. So, what else could we do to successfully assess these future justices? Unfortunately, it does not seem like there is a better alternative to these hearings. Justices most likely have political preferences and align with a political party, but to say so would turn the American people against them and the Supreme Court as a whole. The Supreme Court is popular with the public because it is seen as a impartial body. The justices are revered and respected.
To admit to partiality would shatter the reputation of the Court and destroy the top of the American judicial system. Therefore, nominees cannot answer all the questions of the partisan Senators honestly or at all, sometimes. They must choose between seeming withdrawn and dishonest or partisan and opinionated. In either case, people will be angry with them. Only in the first case, however, will it not matter to the nominee, so long as his or her goal is simply to make it to the bench.