With the conclusion of U. S. Supreme Court nominee Brett Kavanaugh’s confirmation hearing, media complaints about his unwillingness to tip his hand on hot button issues abound. Natural as it is to want our nominees to preview their performance for us, if they actually did that, it wouldn’t show them to be transparent and forthcoming. It would be disqualifying.

There is a short answer and a long(ish) answer to my title question, the latter being the rationale for the former.

The short answer is in the American Bar Association’s Model Code of Judicial Conduct, whose Rule 2.10 (B) says, “A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.”

Supreme Court nominee Brett KavanaughTo understand why Rule 2.10 (B) is in the Model Code, you have to understand what federal courts do. Article III of the U. S. Constitution says that the judicial branch’s power extends to all “Cases” and “Controversies” of the sort Article III enumerates. And the Supreme Court has interpreted the “cases-and-controversies” provision in a way that the late Justice Antonin Scalia explained clearly in Lujan v. Defenders of Wildlife.

Your ticket to the federal courts isn’t just some generalized complaint about something somebody or other has done or omitted. To even get a hearing, you have to have “standing,” which includes three elements.

First, you must have suffered a “concrete and particularized” injury, which is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

Second, you have to show that the injury you’ve suffered was caused by the conduct of the person(s) you’re complaining about.

Third, you have to show that it’s “likely,” not just “speculative” that a decision in your favor will “redress” the injury you’re claiming.

The burden of proof is on you to show that you’ve satisfied all three standing requirements and only if you’ve discharged that burden do you even get the time of day from the courts.

If you’ve done all that and your petition is among the approximately 7000 filed with the Supreme Court every year, you have to hope that yours will be among the mere 80 or so that the Court will accept for a hearing. The Court is on the lookout in particular for cases raising the same issues but which different circuit courts have disagreed about.

So what’s going to land in the Court’s in basket is a petition that, as it’s worked its way through the lower courts, has accumulated a voluminous record of arguments and counterarguments, probably including a sizable stack of amicus curiae, “friend of the court,” briefs supporting and opposing the petition.

If Kavanaugh is confirmed, when he gets one of these bulky packages, while he may be familiar with the general topic involved, it’s unlikely that he’ll have seen that exact case with those exact arguments before. The standing requirements and the Court’s selection process tend to filter out cases that would have the Court just retracing steps already taken.

He and his clerks are expected to go over the record with exquisite care and sober deliberation. In addition, he’ll have to test his views against those of his eight colleagues who’ve combed over the case records just as thoroughly as he has. Only after he’s been through that process will he be in a position to render a decision. That’s why it typically takes months for the Court to decide its cases.

Even this brief account of what Supreme Court justices do, available to anyone with an internet connection, should make it clear why Kavanaugh can’t answer questions in a confirmation hearing that he kept calling “hypothetical.” The reason the Model Code of Judicial Conduct admonishes judges not to tell people in advance how they’ll decide cases is that it’s jurists’ duty not to decide cases until they get them and have immersed themselves in the record that’s the only legitimate basis for decision.

So if, in response to questions at a confirmation hearing, nominees are eager to speculate about issues not before them, just in the abstract and utterly divorced from the dense context of an actual “case or controversy,” that should at least arouse the suspicion that their minds are closed on that subject. But a jurist beyond the reach of arguments from the lower courts, the amicus briefs pro and con, the views of court colleagues in conference and the results of clerks’ research is unfit for any judicial post above the level of traffic court.

You may ask, though, whether Kavanaugh didn’t do exactly that when he lauded the Supreme Court’s holding in Nixon v. United States, but then inconsistently went all cagey about Roe v. Wade. I don’t think so and the Model Code of Judicial Conduct helps here.

What President Nixon was resisting in Nixon v. United States was what’s called in the trade a subpoena duces tecum. That’s not a subpoena compelling your testimony, but compelling the production of records, documents or other effects, audio tapes in Nixon’s case. The first such subpoena was served on President Thomas Jefferson by Chief Justice John Marshall presiding at Vice President Aaron Burr’s treason trial. Jefferson whined about it but complied. I wasn’t parked in Kavanaugh’s head—and neither, by the way, were you—but it’s a reasonable guess that, given that history and a unanimous decision in Nixon, Kavanaugh figured there was scant likelihood of that issue returning to the Court.

Roe, on the other hand, was under attack practically from the day it was decided and has remained so since. Even liberal icon Justice Ruth Bader Ginsberg has mused in recent years that both the Court and the country would’ve been better off with a more incremental approach to abortion than the Roe Court took. So everybody with a pulse knows that it’s a virtual certainty that Roe will be back on the docket just as it has been repeatedly since it was first decided. In other words, by Kavanaugh’s estimate Roe is a clear Rule 2.10 (B) case and Nixon isn’t.

There’s nothing in the least original in any of this. I’m not smart enough to turn up anything that interesting. But it doesn’t speak well for the media that none of them thought it worthwhile to explain this to us. I’ll go out on a limb here and suggest that they saw more benefit in just playing us instead. Tragically that’s child’s play in a climate in which a recent C-Span poll of likely voters shows 52% of respondents unable to name a single sitting Supreme Court justice. I don’t even want to think about how few could name all the current eight.

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Image: The feature image of Supreme Court nominee Brett Kavanaugh with President Donald Trump (White House/Public Domain); Close-up of Supreme Court nominee Brett Kavanaugh courtesy of U.S. Court of Appeals for the District of Columbia Circuit (Public Domain).

Leon Galis

I'm an Athens, GA, native and have been living in Athens since 1999 after retiring from the faculty of Franklin and Marshall College in Lancaster, PA. Since 2008 I've written approximately 80 columns for the Athens Banner Herald and a handful for Flagpole Magazine in Athens.