As if his hyper-partisan record wasn’t enough, and if the Fox News interview didn’t clinch it, Brett Kavanaugh confirmed his credentials as a far-right operative with his attack on Senate Judiciary Democrats on national television. It’s no surprise he’s championing Trump’s policies as fervently from the bench as he championed himself before the Senate.
On his first day of arguments, during just one case—Nielsen v. Preap—Kavanaugh tried to speak at the same time as other justices—despite the tradition of new justices deferring to established justices—and interrupted each of the lawyers twice.
This case revolves around a statutory provision that permits the government to detain an immigrant convicted of any of a group of specified crimes “when the alien is released” from criminal custody. People detained under this provision are not entitled to a bond hearing; they’re detained for the duration of legal proceedings.
The Supreme Court has to decide when the “when” is in “when the alien is released.” How soon must the government detain a person after they’re released, given that they won’t be given a bond hearing? The Founders believed the prerogative to regain liberty after incarceration important enough to include it in the Eighth Amendment: “Excessive bail shall not be required.” Many argue this presumes a right to bail.
Kavanaugh didn’t so much ask questions as make statements. The types of statements that should have come from the government’s attorney, not a justice. When he did ask questions—well, here’s an example of a “question”:
Is that presumption based on what we think was really going through Congress’s mind at the time or is it based on a constitutional overlay, because what was really going through Congress’s time [sic] in 1996 was harshness on this topic. Is that not right?
Kavanaugh didn’t even pretend he possesses the independence required for a justice.
Neil Gorsuch, by contrast, pivoted back to Justice Stephen Breyer’s question when he felt it had gone unanswered, and made queries that, unlike Kavanaugh’s, didn’t presume an outcome. His questions were also consistent with conservative legal beliefs—as distinguished from partisan policy positions.
For example, Gorsuch asked whether, in the event the government had been aware of an immigrant eligible for mandatory detention for 30 years and chosen not to act, it could still take that person into custody 30 years later. In other words, “Is there any limit on the government’s power?”
Justices often pose hypotheticals, detailed grammatical questions bearing on statutory interpretation, and comparisons to other cases and statutes. They may nudge an attorney to explore an argument or to respond to the opposing party’s argument. What they don’t do is argue the case for the attorneys before them. Until Kavanaugh.