Newsweek

Will Brett Kavanaugh Answer the Supreme Question?

Brett Kavanaugh’s confirmation hearings will ignore the power grab that has turned the court into our government’s most dangerous branch. But all the senators have to do is ask about one case—and it's not Roe v. Wade.
Supreme Court, Brett Kavanaugh Source: Photo Illustration by Gluekit for Newsweek; Soruce Images: Tom Williams/CQ Roll Call/Getty; Bill Clark/CQ Roll Call/Getty; Jonathan Ernst/REUTERS

Here’s a game I play when I give a talk about the Supreme Court: “If you think Roe v. Wade was a persuasive ruling, raise your hand.” In most venues, a majority of hands in the audience go up.

“Keep your hand up if you believe Bush v. Gore was also persuasive.” Virtually all the hands go down.

I tell them, “You’re hypocrites. The cases are about the same thing.”

I’d like to see an amended version of this mischief at the confirmation hearings for Judge Brett Kava­naugh, President Donald Trump’s nominee for the High Court. I want senators to ask Kavanaugh about Bush v. Gore, the 2000 ruling that stopped the electoral recount in Florida and awarded the presidency to George W. Bush. The question would be difficult to evade—and it might reveal what ­Kavanaugh thinks of the half-century march that has turned the court into the most dangerous branch of government.

Never before has the court been more central in American life. It is the justices who now decide the controversial issues of our time—from abortion and same-sex marriage to gun control, campaign finance and voting rights. A reckless president or witless Congress can do much harm, but in the long run it is the Supreme Court’s unspoken power grab that most undermines self-government.

Liberals and conservatives ought to worry about this, no matter which party happens to be in charge today. But neither side even talks about the hubris of justices who so often substitute their own judgments for those of lawmakers in the elected branches.

More than , is a way to get Kavanaugh to confront the issue, a way to box him in strategically. Walk Kavanaugh through that ruling in hindsight

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