Of course, they didn’t do that, so we’ve been treated to what then‐professor Elena Kagan called a “vapid and hollow charade.”
But even if we didn’t learn anything this week, there was refreshing clarity on the parties’ divergent judicial philosophies. By that I don’t mean whether Roe v. Wade was correctly decided or the scope of the Second Amendment, but the difference between law and policy. To take two contrasting examples from Wednesday’s session: (1) Republican Senator from Texas Ted Cruz discussed how he favors school choice — calling it “the civil rights issue of the next century” — but that it’s not the place of a federal judge to impose it, while (2) Democratic Senator from Hawaii Mazie Hirono called the distinction between law and policy “artificial” in arguing that the Affordable Care Act must be constitutional because so many people depend on it. Indeed, each of the Democratic senators had blown up pictures of constituents who would be harmed if Obamacare went away.
Now, emotional arguments are all well and good if you’re trying to appeal to an electorate — as California Senator Kamala Harris used most of her time to do with regard to everything from health care to climate change, because she’s the Democratic nominee for Vice President.
But judges are supposed to do something else: They’re supposed to apply the law, which sometimes leads to unpopular outcomes. Judicial power is not a means to an end, but an enforcement mechanism for the strictures of a founding document intended just as much to curtail the excesses of democracy as to empower its exercise.
In a country ruled by law, the proper response to an unpopular legal decision is to change the law or amend the Constitution. Any other method leads to a sort of judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process.
Nevertheless, given the expansion of federal power, and then the shifting of that power away from the people’s legislative representatives and toward executive branch administrative agencies, the judiciary affects public policy more than it ever did. And court decisions increasingly hinge on the partisan affiliation of the president who nominated the judges making them.
With the two parties adopting incompatible judicial philosophies, it’s impossible to find an “uncontroversial” nominee. That’s doubly so when a nominee’s philosophy represents a big shift from that of the previous justice. As Democratic Senator from Delaware Chris Coons highlighted, Justices Antonin Scalia and Ruth Bader Ginsburg were often on opposite ends of close cases. Replacing Ginsburg with Scalia’s former clerk Barrett would mean a bigger change than replacing the moderate Anthony Kennedy with his former clerk Brett Kavanaugh.
Those jurisprudential differences, and their alignment with ideologically distinct parties, are a relatively new phenomenon; in the grand sweep of American history, things didn’t always line up so neatly. But regardless, the Barrett hearings showed that the parties do have different approaches to the law — and that Democrats don’t see legal questions as divorced from political ones.