No More Grandstanding. Ask Kavanaugh Better Questions.

By Peter H. Schuck, The New York Times

06 September 18

We all know his politics. But justices rarely perform the way partisans and the news media expect them to.

ommentary on Supreme Court nominations these days is more akin to sportscasters announcing a close baseball game: “The liberals and conservatives are tied going into the bottom of the ninth. Brett Kavanaugh, a promising rookie pitcher with a strong minor league record, is coming in to replace the streaky Anthony Kennedy. When Kennedy was hot, the conservatives won, but when he slumped, the liberals could squeeze by. Kavanaugh seems a lot steadier than Kennedy.”

This way of handicapping Supreme Court nominees has a definite allure. We all love a horse race, and politics often seems like one. But for court nominations, sports analogies are dangerously misleading. It is true that knowing the party of the president and the nominee provides a strong indication of how the nominee will later vote in cases of sharp partisan differences on the underlying policy issue — for example, the recent Janus v. Afscme decision barring a union from imposing agency fees on nonmembers.

But in 75 percent of cases, partisan affiliation is not fully predictive of justices’ votes. In the hardest ones, lower courts reached different results despite seeing the same evidence, and considering the same legal arguments. This week, senators should spend less time grandstanding with questions that simply highlight Judge Kavanaugh’s well-known ideological positions, and a lot more time trying to assess how he would vote in these much trickier cases.

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