Brett Kavanaugh and Sourdough Starter
I’m writing this as I learn that the US Senate has voted to confirm Brett Kavanaugh to a seat on the Supreme Court. I usually enjoy confirmation hearings, and I’ve been watching them for a long time. I only threw away my David Souter confirmation recordings (six VHS tapes from 1990) last year.
Justice Souter’s confirmation was more important than people usually remember: he was nominated by a conservative to fill the seat of the Court’s strongest progressive, William Brennan. Justice Souter won his confirmation in part by openly promising to continue one of Justice Brennan’s main legacies, to uphold policies of positive discrimination in the name of “undo[ing]” the effects of prior de jure discrimination. This single, well-selected admission earned him a seat.
But this is not how the game is usually played. Candidates have always been reluctant to give an opinion on any issue that might come before the Court, partly because it’s inconvenient to their ambitions, but also because it’s strongly discouraged by the ABA’s Code of Judicial Conduct. It’s common now to cite the ‘Ginsburg Rule’, a 1993 statement of this principle (formulated in defence of Ruth Bader Ginsburg), but the statement was nothing but a repromulgation. The ‘Ginsberg Rule’ arose again a few weeks ago, when the confirmation hearings for Judge Kavanaugh were still dealing with judicial issues.
So the custom of silence is old, but there’s a new coinage for it. Justice Ginsburg is seen as progressive, and it’s no surprise that her name was used to defend a conservative candidate against the impatience of progressives. ‘Swallow it — it’s your rule’, was the conservative charge when Judge Kavanaugh declined to say how he would rule in a case. But the late Justice Scalia, during his confirmation hearings, was equally reticent about his true opinions, and his questioners complained loudly. So we could as easily speak of a ‘Scalia Rule’, and perhaps we will some day, when the roles are reversed and progressives need a charge to throw in the teeth of conservatives. And then maybe later, back again to the ‘Ginsburg Rule’, with the eponyms of these two famous friends taking turns like Castor and Pollux.
The ‘Ginsburg Rule’ of course makes the hearings much less interesting, and forces the questioners to look hard for useful things to ask. Supporters will ask oily questions, or repeat favourable parts of the record and ask the candidate to comment. Opponents will try to coax an admission, or will quote something the candidate has said and attempt a kind of medieval gloss on it. And sometimes the enquiry exhausts itself, the usual avenues dry up, and the questioners find they have nothing to talk about but scandal.
My title promises a discussion of sourdough starter. It’s not an excursus. Sourdough starter begins with some flour and water exposed to the air. Yeast spores in the air settle into the mixture and multiply. After a week, you use some of the starter to make bread, and you store the rest. You must continue to feed flour to the starter you have stored: it needs food. When it runs out of anything to eat, it begins to feast on whatever it can lay hold of, usually the by-products of yeast production. It ferments, and is unusable. So you must feed the starter.
Indulge me. The first phase of Judge Kavanaugh’s confirmation hearing had no content. His opponents focussed on questions of process that had already been decided against them. They also pressed the candidate to answer questions he could not answer under the ‘Ginsburg Rule’. His supporters, in turn, made no attempt to draw out his profile, instead recounting over and over matters that were already in the record.
Just as the judiciary committee was discovering it had nothing to talk about, one committee member aired a claim of sexual assault against Judge Kavanaugh. I have been on many committees. When a committee loses its direction, and members are wondering why they’re there, one member will find the impulse to say “I think it’s important to point out …’ and then offer something that unwillingly expands the consciousness of everyone present. Attention to the matter is then unavoidable, even when it’s begging for a different venue.
Whether it’s the ‘Ginsburg Rule’ or something else, the judiciary committee is typically starved of content and feeds on what comes to hand. How to feed it? I can only report what I hear myself shouting at the television when these occasions come around. I draw heavily on an early period of my legal career, when I served three terms as a judicial clerk, latterly at a U.S. Court of Appeals. I worked with and observed the working practices of many federal judges, and I began to understand the qualities of a good judge.
1. Does the candidate know how to write? Clear writing shows intellectual confidence. Close readers of legal writing know that uncertainty has a certain music to it, and they know when they hear it. Also, a good writer, even an intellectually confident one, must be sufficiently self-aware to recognise when words, apt and accurate, are also combative, baiting, or hurtful.
2. Does the candidate have any history of laziness, slowness to act, or indecision? If the candidate is already a sitting judge, there will be a trail. Statements by advocates, a writ of mandamus, or correspondence from the Administrative Office, can tell a tale. On a collegial court, these shortcomings are disastrous.
3. How does the candidate use, or intend to use, his or her judicial clerks? An important question, never asked. Clerks in the U.S. can play any role from library drudge to sounding board, at the judge’s discretion.
4. Does the candidate have the stamina of a much younger person? When you’re a judge, the relaxations of partnership never arrive. It’s like law school for the rest of your career.
5. Is the candidate discreet? A judge’s chambers are more lively, and have more traffic, than you might expect.
6. How collegial is the candidate? Stubborn in forming opinions, rude in conference, insensitive writings, unaccommodating to other judges’ time: a disaster.
Last, questioners who want a peek behind the ‘Ginsburg Rule’, but aren’t having any luck with ‘judicial philosophy’ and such, might try something like this:
7. How far beyond the law library is the candidate willing to look for answers, and where?
That’s how I would feed the starter.