The case for internet originalism
What does it mean to be qualified to be a Supreme Court justice?
Imagine that U.S. Supreme Court judicial nominations and confirmations were nonpolitical. The president would nominate the best-qualified candidate, regardless of politics, and the Senate would treat its advice-and-consent role seriously. Were that the case, is Judge Brett Kavanaugh qualified to be a Supreme Court justice?
The question, of course, hinges on what it means to be "qualified." I did a radio interview on the second day of the Kavanaugh confirmation hearings and said that he "probably" is qualified to be a justice. Almost immediately I received an email from a partisan supporter of President Trump, excoriating me for using the word "probably." It apparently was clear to him, well before the hearings had finished, that Judge Kavanaugh is qualified - no matter what the rest of the hearings would tell us.
My use of the word "probably" was to suggest that, until all the information was in and the hearing had ended, I could not reach a conclusion on the judge's qualifications to sit on the high court. One needs to keep an open mind and listen to all the testimony, and not pre-judge someone based on partisanship or ideology. Who knew what might happen, or what we might learn about Judge Kavanaugh?
Unfortunately, the email writer is not atypical - the Kavanaugh hearings, thus far, did little to provide new information on his qualifications and few, if any, members of the Senate Judiciary Committee or the Senate as a whole appear to have been influenced by the testimony and evidence. The Kavanaugh hearing was merely an overture for the 2018 elections. But now, with accusations of a sexual assault, the outcome of his confirmation is not certain and we might ask the question again: What does it mean to be qualified to be a Supreme Court justice?
"Qualified" is not defined anywhere in the Constitution; there is no language in Article II, Section 2 that directs what presidents should consider when making judicial appointments. The same holds true for what senators should consider when offering the president their "advice and consent." This renders "qualified" a matter of political judgment, leaving open the factors to be considered.
To be qualified starts with technical skills - knowledge of the law, legal reasoning, past experiences, including as a judge. By those accounts, Judge Kavanaugh is qualified - even highly qualified as a judge, according to the American Bar Association. If being a judge were simply a merit system, and politics or ideology were not factors affecting the courts, then perhaps a discussion of Judge Kavanaugh's qualifications would end here.
But it does not end here. Political science research shows that the ideology of judges often matters in decision-making. As retired Judge Richard Posner once said about Judge Robert Bork when the latter was nominated to the Supreme Court, judges are not potted plants. Judges must make difficult calls that demand good judgment, and judging is not purely mechanical and value free. If it were, we could replace judges with computers or robots. Thus, even without politicizing the judiciary, more than mere technical skills are necessary to determine one's qualifications to be a judge.
One's judgment or views matter. Would it not be valid to consider whether a judicial nominee believed in civil rights for all? The Bork hearing was political, but "political" included a question regarding whether his views were within the accepted mainstream of legal orthodoxy. Justices on the Supreme Court are trustees for the Constitution because they interpret it, and part of "advise and consent" by the Senate should be to determine whether a nominee can be trusted to serve in that trustee role. There is no way one can ask nominees about all issues they may confront as a justice; at some point, it is about whether one can trust their judgment. For that reason, character matters, too, as part of ascertaining qualifications or fitness to serve.
One of the toughest issues is determining what factors in one's private life, in any, are relevant to public service (or any job). Does it matter that one drinks, smokes, or holds certain opinions? At one time, infidelity, being a member of the LGBTQ+ community, or ingesting marijuana was considered relevant and a strike against a candidate. It is less clear whether these factors hold as much sway as they used to.
Moreover, where do we place past acts, especially bad ones, in terms of judging one's present character? Do acts committed one, five, 10, or 30 or more years ago speak to one's present character? Sometimes yes, sometimes no. People change, mature, or evolve, and sometimes they do not. Aristotle referred to character as "habits of the heart." Doing something once does not necessarily speak to our character, but when it becomes a habit, it does.
Now think also about the concept of mercy and forgiveness. As eloquently stated in Shakespeare's "The Merchant of Venice": "The quality of mercy is not strained." By that, should all of us not be entitled to forgiveness and a second chance?
In the case of Judge Kavanaugh, let us assume the allegation of sexual assault against him is true, and assume he had been convicted of a crime and paid his legal debt to society. Should we not forgive him and look at the rest of his life to determine whether he is qualified - or does one bad act disqualify him for life? For many who say we need to give ex-felons a second chance, the answer would be to give a second chance, but one still needs to place this one bad act within a larger picture to consider what it says about his character. In some cases, one bad act may be disqualifying.
Judge Kavanaugh is accused of a bad act. Even if the allegation is true, does his reported behavior on one night in high school render him unqualified to sit as a Supreme Court justice? There are competing answers, taking us in different directions, suggesting that even under an ideal situation, there is no clear answer to what it means to be qualified to sit as a justice.
David Schultz is a professor of political science at Hamline University. He teaches a class on generational politics and is a co-editor of "Presidential Swing States: Why only 10 Matter."