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Senators have asked Brett Kavanaugh about a wide number of issues these last two days. A number of exchanges have become very predictable:

  • Q: How do you feel about a past decision? A: It is precedent. Q: Sure, but precedent can be overturned based on judge's interpretations. How do you feel about it? A: I am a judge, I just follow precedent—stare decisis, etc.

  • Q: How do you feel about a case currently in the court system, which might come before you? A: I cannot give hints as to how I will vote in pending cases.

  • Q: How do you feel about a case that might come up in the future? A: I cannot speak to hypotheticals.

As to the why he is not able to answer these questions, he says that he studied previous nomination proceedings and is following what these other judges did. He calls this "nominee precedent." However, he always says that is what "I call it." This implies to me that "nominee precedent" is not a widely-used term.

I do not have a background in law. The questions I have are:

  1. What is the precedent for what a Supreme Court nominee can and cannot say? How different is his approach from what people have done in the past? For lack of a better phrasing, is Kavanaugh just saying this to dodge questions, or is there actually a tradition of precedent supporting his pattern non-answers?

  2. What are the consequences if he does not follow this precedent? It seems to me to be unlikely that there is any legal consequence—the only negative consequence he could face for not following this precedent is just that the Senate would not vote to confirm him.

  3. If there is solid, non-partisan, defensible precedent for him not answering questions, then what is the point of questioning the nominee? If a nominee cannot comment on past decisions by others, says to "read the opinion" on their own previous decisions, cannot comment on current cases, and cannot comment on hypotheticals of future cases, then what is the point of a hearing in the first place? It seems naive to believe that a person is a machine that follows predecent.

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If a nominee cannot comment on past decisions by others, says to "read the opinion" on their own previous decisions, cannot comment on current cases, and cannot comment on hypotheticals of future cases, then what is the point of a hearing in the first place?

Much of what you describe constitutes improper evasion (please note that I have neither watched the hearings nor read any holdings by Kavanaugh, which I presume has prompted your question). A judge's mere answer that he would follow stare decisis is as useless as if a candidate for investment management simply answered that he would "buy low, sell high".

Not all of that evasion is improper, though. For instance, the Michigan Code of Judicial Conduct in its Canon 3.A(6) reads:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require a similar abstention on the part of court personnel subject to the judge's direction and control. This subsection does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court or the judge's holdings or actions.

(Note: I doubt the the federal equivalent of these rules would significantly differ. In this regard, the U.S. consists of many jurisdictions copying each other this type of rules. I would call it jurisdictional rip-offs. The term rip-off applies also from the standpoint that many judges flagrantly violate these rules, but I am digressing from the topic.)

In theory, the rationale for that "Canon" is that a judge's (or judicial candidate's/nominee's) public comments about pending or impending cases are very likely to disrupt litigation, exacerbate court-shopping, and is perceived as catering to certain lobbyists or groups of power, thereby heating the undeniable trafficking of influences in court. Moreover, that kind of comments would prejudice the party who is not favored by the comments and who has no equal access to the forum or media in order to refute those comments.

However, you can see that the same item of that Canon allows a judge to explain "for public information [...] the judge's holdings or actions". Thus, principles of transparency should compel a judicial nominee to openly answer questions about his or her own decisions. Of course, for an examination to be effective, it is necessary that the legislators come prepared to the hearing by having read various opinions (decisions) released by that judge.

Furthermore, the Canon does not prohibit to answer inquiries about hypothetical scenarios. As long as the hypotheticals do not resemble a pending or impending case, a judicial nominee (or candidate, where elected by public vote) should promptly give others a [non-conclusory] walk-through of his or her judicial rationale.

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This essentially goes back to the failure of the Bork nomination. He was asked the question "Why do you want to be on the Supreme Court?", and he answered to the effect "For the intellectual challenge." It was an honest answer, and it was devastating. It sunk his nomination as it was used to paint him as an elitist that was wholly out of touch with the populace and how the Constitution and the Supreme Court affects them.

That's when parties and nominees really learned the lesson that honest, direct answers could be weaponized. Thus was born the strategy of evasive dissimulation: better to give harmless non-answers than to risk damaging yourself with a real answer.

Not to say that nobody tried to dodge a bullet during their confirmation hearing before then. Sandra Day O'Connor was also the focus of a great deal of abortion-related concerns, and she rather famously avoided giving any substantive answers on Roe v. Wade and related matters.

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