Update: The nominee has been announced and it is big boy Brett Kavanaugh. And would you just look at that! I was correct, I don’t support him!
There is a very silly TPUSA video going around decrying liberals for opposing Trump’s pick for nominee (even though they haven’t been nominated yet). In all honestly, the video does not really merit a response, so I have declined to link it here—though it does showcase how modern conservatism has become unmoored from any particular principles other than cultural anguish, resentment of liberals, and ardent nationalism—conservatism redefined as “owning-the-libs.” But, what really struck me about their line of questioning, other than the self-righteousness with which they approached it, was how foolish their argument was. Do I really need to know who exactly the nominee will be, to have an opinion about them, if I know that more likely than not, they will not share my political or philosophical priorities?
To start out with, I do not agree with the Senate Republican leadership or the President on a whole bunch of things. We have divergent visions for America, different notions of what the country is or what it ought to be. We have different conceptions of what is right and wrong, and radically different policy positions. It should not come as a surprise that we have different jurisprudential priorities as well, since they are, in part, informed by my political priorities. But wait! Isn’t the Supreme Court supposed to be nonpartisan, the process of nomination and confirmation devoid of the corrupting influence of politics? How dare I sully the vaunted Supreme Court with talk of interests and differing philosophies!
First and foremost, if the Supreme Court nomination process were really insulated from politics, in the status quo, Merrick Garland would be on the bench or Trump would not nominate a justice in an election year. McConnell wants staunch conservative on the bench to deliver on conservative priorities, I do not.
Also, moral and philosophical beliefs cannot be separated from the interpretation of the law. We often like imagine the law romantically, as this objective, easily accessible and understandable body of knowledge and rules, about which there is no disagreement. But this is a faulty conception of law. Ronald Dworkin pointed this out in his magnum opus Law’s Empire, explaining that not only do lawyers, legal scholars, and judges disagree about how to interpret the language of, say, a statute, but they also have deep, substantive disagreements about legal philosophy or legal pragmatics which informs their jurisprudence. Indeed, judges disagree about a whole plethora of issues such as:
1) Fundamental questions about legal philosophy, the nature of law, and what “law” (as a concept) is.
2) When should precedent be upheld? When should it be abrogated
3) How to interpret the language of a law.
4) How to resolve ambiguities when the interpretation of a law is unclear and the issue could be reasonably settled in one direction or another.
5) What the empirical facts or particularities of a case are…
6) Which laws are applicable at a given moment? What do you do when it is unclear how to apply the law to the case? How do you adapt older laws to changing circumstances?
So, Trump, McConnell and I disagree about what jurisprudence should look like because we have different answers to many of those questions and different political priorities. We have differing opinions on fundamental philosophical questions, pragmatic legal issues, and policy issues (it is worth noting that there is an added dimension to this because the empirical beliefs that inform different policy conclusions may cause a judge to rule differently in a given case).
This is a ridiculous point to drone on upon, because we also know who is on the short-list. Unless you’re a Susan Collins-esque voter, for whom there is an actual difference between, say, Kavanaugh and Hardiman, you can make up your mind already. But, even if we didn’t have the short-list, even if we were left completely in the dark, I would still oppose the nomination. Because, very simply, Trump and the Senate GOP will chose a nominee who agrees with them and disagrees with me (on several grounds). Sure, I guess if they cloned RBG or Sotomayor and put them up for nomination I would support them, but we both know that’s not happening anytime soon.
Tl;dr: Trump and I disagree about politics and jurisprudence and his nominee will probably disagree with me as well. So stop being silly, TPUSA.