inquiry, (n) a series of questions along a line of reasoning
In today’s 24 hour news cycle and Twitter Wars, we are not granted much time for thoughtful inquiry. Spin Doctors aim to set agendas. Pseudo-debates present conflicting opinions, with emphasis on conflict rather than authentic beliefs. Political parties, interest groups, and political action committees develop and disseminate their talking points, then reiterate these as if they were news.
Within minutes of President Trump announcing his nominee, in prime time, like this were the NFL Draft, supporters were gleefully cheering Judge Brett Kavanaugh and dissenters were marching with pre-made signs on the steps of the Supreme Court. Are we not supposed to have Senate hearings before making decisions?
One of my senators, the Republican, met him within a day or so, and made glorifying comments on the Senate floor… are we not waiting for the nomination hearings before endorsing him? My other senator, the Democrat, was scheduled to meet with him this week. At least he, maybe listening to my advise in my e-mail correspondence, said that the nominee deserved a fair hearing before endorsing or criticizing him. This senator also asked constituents for questions to ask Judge Kavanaugh.
Ah, a golden moment, given that I have already draft my list of questions. Enjoy. Don’t bite that tongue in your cheek.
Supreme Court nominee Brett Kavanaugh’s confirmation hearings will be held soon. Our state has been getting a lot of press for Senator Capito’s conservative vote, and the President’s hope to win over you as a swing vote. Senator Capito has had the opportunity to meet with the nominee. She has spoken favorably in her internet newsletter and on the Senate floor. I heard on the news that you will meet with Judge Kavanaugh this week.
But, confirmation hearings should be a time to explore, challenge, and reflect on the nominee’s answers before determining whether he will fill a judicial position that may influence a generation or longer. I have compiled some questions which I would ask, if I were in your position. I will be listening, in the press and your future newsletters, for the answers to some of these.
Judge Kavanaugh has expressed his respect and reverence for the Constitution. The following questions address issues related to the history behind and the construction of the Constitution:
When organizing his ideas for the Constitution, and later Bill of Rights, James Madison cloistered himself for several months to read about prior civilizations and governments to extract what elements lead to a stable society and just rule of law. If you could select a text from Madison’s library at his home in Montpelier, VA, what book would you enjoy reading on your summer vacation?
Many of Madison’s readings were from Greek and Roman history. Which Roman author do you uphold as important to your interpretation of the Constitution?
The philosopher, George Santayana, said, “Those who cannot remember the past are condemned to repeat it.” What period of history do you see as important to understand in order to guide our current civic debates?
Shakespeare wrote many history plays, as well as comedies and tragedies, which touched on governance, for better or worse. Which of Shakespeare’s plays gives you inspiration on how to understand the role, responsibility, and risks of leadership in society?
The Constitution gives the power of legislation to Congress. The court has the role of judging whether those laws adhere to the principles in the Constitution and legal precedent. What characteristics do you look for in legislation to determine whether the law was well written?
What errors do you look for as evidence that a law was poorly written?
The concept of the Rule of Law is that legislation provides stability for society. What role do you see the Constitution playing to assure a stable society?
At the same time, social issues change and short-comings in laws need to be addressed by the legislation to correct those errors. In what ways might the Constitution impede progress in society?
Judge Kavanaugh has espoused an originalist interpretation of the Constitution and laws. Given that the world has changed vastly in our life times, regarding commerce, religious practices, transportation, health care, and technology, many contemporary issues could not have been envisioned by the writers of the Declaration of Independence, Constitution, and Bill of Rights. This is evident through the Amendment process, which extends to 27 Amendments over the past two centuries. The following questions relate to how to apply original language and sentence structure to current laws:
At the time of the writing of the Constitution, our economy was based on agriculture and seafaring commerce. How did the Constitution relate to a mostly rural farming community, and coastal based port city oriented society?
How did the Industrial Revolution change our understanding of the Constitution?
How might rural and urban citizens view the Constitution differently, today?
The Constitution was written by men and committees. It contained compromises, and retrospectively considered errors and omissions. Through the Amendment process Congress has attempted to correct some of those limitations. If you could add an Amendment to clarify a poorly addressed issue in the Constitution, what would seek to correct?
How can the 18th century, original intent of Madison and the other drafters of the Constitution, Bill of Rights, and other Amendments be applied to contemporary social issues?
If Madison were to visit you today, what African American author(s) would you recommend he read to understand how the past 200 years have progressed from their perspective?
The 2nd Amendment of the Bill of Rights can be read in different ways because of the three commas and four clauses. For instance, Justice Scalia advocated that it be read “the right of the people to keep and bear arms shall not be infringed”. This begs the question of what relevance the two preceding clauses are to that statement. Another reading is, “A well regulated militia shall not be infringed”. In this case the two middle phrases modify the word “militia”. How do you read Madison’s grammar?
The 13th Amendment ended the practice of owning people as slaves. One exception was granted. Prisoners could be compelled to work without compensation. Some have accused the European-American citizens as using this to construct laws to arrest and imprison citizens of African-American descent, in order to perpetuate their enslavement, but under the guise of them being criminals. There are many examples from the Jim-Crow laws to the more recent harsh criminalization of crack cocaine (mostly used by low income, African-Americans) and powder cocaine (preferred by college age and young professional European-Americans). If you were to debate a law which appeared to target one demographic group for criminal behavior over another demographic group, would you question the original intent of the drafters of this amendment?
Justice Kagan lamented that in the past Supreme Court session that justices identified as conservative “weaponized” the 1st Amendment (freedom of speech clause) to push a pre-determined agenda. What is your opinion about so called Activist Judges?
One view of literature is that the stories we read reflect on our contemporary society, conflicts, issues, and potential resolutions of those issues. A familiar example is the original Star Trek series in the 1960’s played out Cold War politics and the 1960’s social revolutionary ideals. Another example is the Star Wars movies that have followed our civic history over the past 40 years. What do you predict will occur in the 9th episode of the Star Wars saga? How does this reflect on our future?
Thanks for the conversation.