Brett Kavanaugh, President Trump’s latest nominee for the Supreme Court, will soon be subjected to what he once called in a lower court decision the “activities of democratic self-government.” An elected body, the Senate, will pepper what could be a lifelong independent justice with questions to test how his views on issues from abortion to gun rights will influence his decisions as a Supreme Court judge.
Like court nominees before him, Judge Kavanaugh will frustrate his interlocutors with nonanswers so as not to tip his hand on future cases before the court. As it should be.
Despite decades of attempts to politicize the courts, nominees for the judicial branch still try to be models of restraint when asked how they would engraft their political preferences on society. Most see their role as one of civic-minded conflict management. They want to be perceived as meting out justice based on reason, fair assessment of the facts, respect for constitutional principles and traditions, and a balancing of individual rights and the will of the majority.
Beyond the Supreme Court’s marbled walls, those virtues are rarely seen by the public. Yet they are essential to a healthy republic.
“[I]f the Justices have any way to further the cause of our self-government,” wrote law scholar Frank Michelman in a well-noted 1986 Harvard Law Review article, “it lies through the exercise of their own.”
Senators will need to test Kavanaugh’s commitment to his own self-government, or the process by which he interprets the Constitution while relying on the highest ideals embedded in it. The court itself, like the legislative and executive branches of government, is not above the founding document. It must be obedient to it.
The majority of the high court’s decisions are unanimous or near-unanimous, a sign of how well justices can serve as a model of collective self-government. The justices hold fast to James Madison’s hope that the people will have the virtue and intelligence to select representatives, and in turn pick judges, who demonstrate virtue and intelligence in their decisions.
The courts do not have the power of the purse, as Congress does, or the power of the sword, as the presidency does. Rather their power lies in the character of judges in interpreting the Constitution and past court rulings to safeguard both social order and individual liberty.
If the Supreme Court is ever to be seen as nonpolitical, both the president and the Senate will need to start picking nominees based on their ability to practice self-government. The courts are entrusted to look to the Constitution for guidance, but in addition, the process of decisionmaking must also reflect the virtues expected of self-governing and sovereign individuals.