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:
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?
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.
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.