For both liberals and conservatives, a central fact about judge Brett Kavanaugh is that he is an “originalist.” His decisions, it is said, will be guided by the Constitution’s “original meaning.” If history is any guide, originalism will be a major discussion point at his confirmation hearing. In 2005, for example, John Roberts was asked 135 questions about judicial philosophy, in particular his approach to interpreting the Constitution. What ensued was fairly characterized as a “Kabuki dance”—elaborate, decorous, but ultimately superficial and unrevealing.
Liberals and conservatives alike can do better. The test of a judge’s mettle is not whether they are an “originalist.” That term just isn’t as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution’s original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.
As the public wearies of the ensuing charade, both Democrats and Republicans have strong incentives to ask better, more revealing questions of Kavanaugh. Those questions would illuminate where his appointment will take the Supreme Court and the country.
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