Supreme Court nominee Brett Kavanaugh will no doubt be subjected to detailed questioning this week about his substantial record as a jurist. Kavanaugh has been groomed through the equivalent of a far-right judicial finishing school, and has reliably reflected those very conservative views of the law. Indeed, the farthest he seems to have strayed from Washington, D. C. and Bethesda, where he grew up, is Yale where he obtained both his undergraduate and law degree.
I think most of us, whatever our political leanings, appreciate an independent thinker on the Supreme Court, one who can see novel solutions and compromises that may look ugly yet work. That looks too much to hope for in Kavanaugh, so how about some real life experience outside the bubble of judicial abstraction that he has inhabited his whole life. Is a little empathy too much to ask? Yes, jurists must follow the law, but that leaves a lot of leeway for judges to considerthe law through lived experience. I am looking for some sense that he understands the real consequences for real people in the decisions he makes.
People are used to coming to this blog for essays about urbanism and architecture, but these things are all touched by the decisions judges make—about peoples’ lives and identities, about how communities adjudicate disputes, and about the quality of the environment we live in. Since Kavanaugh’s is such an important Supreme Court candidate, the skills and outlooks he brings could not be more important.
If I was on the judiciary committee, these are the questions I would ask:
Have you personally met anyone who could not afford health insurance and who therefore had to forego needed medical attention?
Have you known or employed anyone who you knew to be an undocumented immigrant? What did you learn from this?
Have you visited a homeless shelter? Talked to a homeless person?
Have you spoken to a victim of gun violence? Have you spoken to such a person in court, or just their attorney?
Have you spoken to a family member of someone black who was shot by a policeman believed by that person to be innocent or unarmed? What did you learn? Are you close to someone who you know is gay, gay/lesbians who are married? What did you learn from this?
Has a parent or young woman asked your counsel on whether to use birth control? Whether or not anyone has asked, what would you advise?
Has anyone close to you discussed with you their decision to abort a child? What did you learn from this?
Did you have trouble paying off debt from your studies at Yale? Were you ever in rent arrears because of these payments, unable to buy a house because of college debt? Had to forego paying rent or health insurance to cover an unexpected expense such as home, car, or medical expense?
Have you ever been arrears in rent? Threatened with eviction?
Have you ever met a juvenile in detention because he or she could not raise bail? If that person was a defendant in court, did you ever speak to or counsel that person? Have you ever visited a juvenile detention facility? If you have had extended contact with a juvenile offender and learned their life story, what did that tell you?
Have you ever met anyone wrongly convicted of a crime, who may have served a significant undeserved sentence? What did you learn from this?
Do you accept the science of climate change? If not, do you selectively reject scientific findings? Do you accept that climate change effects are real even if you believe that climate change in our era is not human caused?
Can changes in the atmosphere that nearly all disinterested scientists attribute to climate change be deemed pollutants?
Have you met anyone made homeless by extreme weather, such as hurricanes, floods, forest fires, and tornadoes? Have you visited communities substantially damaged by a disaster? Do you accept a government role in preventing such disasters as well as ameliorating damage and suffering?
If Kavanaugh could give a sense that he has engaged with people who can be profoundly affected by Supreme Court decisions and understands what they go through and what they are up against, I think many Americans would feel more positively toward a candidate who now seems rather like a judicial robot.