The Washington Examiner: Sen. Lamar Alexander: On Brett Kavanaugh, Senate should quit its 'innocent until nominated' habit
Posted on August 1, 2018
The Senate has developed a bad habit of treating presidential nominees as “innocent until nominated.”
I hope to see better behavior when hearings begin on President Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court. Instead of treating Kavanaugh as someone recently released from San Quentin State Prison, the Senate Judiciary Committee should conduct its hearing with dignity and respect so that everyone can better understand Kavanaugh’s temperament, intelligence, and character.
The current rudeness in the Senate is a recent phenomenon. Historically, senators have recognized that bipartisan approval of qualified nominees helps to increase the Supreme Court’s esteem, confirm its impartiality, and strengthen it as an institution. Conservative Justice Antonin Scalia was confirmed unanimously. Justice Ruth Bader Ginsburg, likely the most liberal current justice, was confirmed 96-3. More recently, half the Democrat senators voted to confirm President George W. Bush’s nomination of Chief Justice John Roberts. In 2014, I voted to confirm President Barack Obama’s nominee, Sonia Sotomayor, not because I agreed with her, but because she was qualified.
Some senators insist that Kavanaugh knows how he would decide a case. This reminds me of a story by Sen. Howard Baker, R-Tenn., of the mountain judge who told lawyers: “Just give me a little on the law, boys. I had a telephone call last night, and I pretty well know the facts.” Judges aren’t supposed to decide cases in advance — that’s why we have judges, to create an impartial system of justice.
Ginsburg said during her confirmation process that she would give “no hints, no forecasts, no previews” of what her legal views would be once confirmed. This is now known as the Ginsburg Rule: Justices are supposed to follow the law and decide cases when the case is presented, not before justices are confirmed. And, of course, justices’ decisions can be surprising. For example, Scalia once ruled that a government ban on flag-burning violated the First Amendment. Scalia also once said, “The judge who always likes the results he reaches is a bad judge.”
In 2006, I voted for Kavanaugh when Bush nominated him to the D.C. Circuit Court of Appeals. Earlier this month, I attended Trump’s nomination of Kavanaugh at the White House; you have only one chance to make a good first impression and Kavanaugh took full advantage of his. I was impressed again last week when I visited with the judge in my Senate office. We discussed federalism, how to strengthen the Supreme Court as an institution, and other matters — but never once did I ask, nor did he hint, how he might rule in a case.
I will not announce how I will vote on Kavanaugh's nomination until the hearing is completed. Some Democrat senators already have announced their opposition to Kavanaugh. Why have a hearing and why demand to review more of his writings if you’ve already decided how to vote?
During my eight years as governor of Tennessee, I appointed about 50 judges. In doing so, I looked for the same qualities I will look for now as the Senate considers Kavanaugh: intelligence, character, temperament, respect for the law, and respect for those who come before the court. I did not ask one applicant how he or she would rule on abortion or immigration or taxation. Political party membership was far down my list of considerations.
I hope that the Senate will return to the practice of inquiring diligently into the qualifications of a nominee instead of treating him as “innocent until nominated.”