Last week, two people testified before the Senate Judiciary Committee. Of the two, only one ― Brett Kavanaugh ― has been described by his supporters as a constitutional textualist and strict constructionist: an adherent to the judicial philosophy that the words of the Constitution provide a clear and literal meaning that should be enforced.
But it was the other person, Dr. Christine Blasey Ford, who testified as if the words she used had precise, unchanging meaning.
Most commentators have focused on Kavanaugh’s testimony for its apparent untruthfulness. And with good reason. No Supreme Court nominee who lies under oath during his or her confirmation hearing should be promoted to the nation’s highest court.
Others have seized on his erratic and emotional display before the Judiciary Committee as disqualifying, also for good reason. The Supreme Court has no place for a jurist so easily prone to indulging a partisan temper tantrum like the one Kavanaugh displayed in his opening statement.
Yet missing in the analysis of Kavanaugh’s performance is how his dishonest and disingenuous testimony also demonstrated the shallowness and inconsistency of his supposed judicial philosophy.
With every shrug, eye roll and exasperated sigh about his yearbook entry, Kavanaugh demonstrated how unseriously he treats the written record, including his own words, if it does not serve his purpose. With his evasions, his feigned confusion, and his, yes, liberal interpretations of well-known words and phrases, Kavanaugh made clear that textual literalism is a sword he wields rather than a principle he lives by.
With every shrug, eye roll and exasperated sigh about his yearbook entry, Kavanaugh demonstrated how unseriously he treats the written record if it does not serve his purpose.
Strikingly, Kavanaugh’s sloppy testimony differed remarkably from Ford’s own careful and specific attention to her words.
When prosecutor Rachel Mitchell asked her to review prior statements she had made about her alleged assault for their accuracy, Ford drew attention to her incorrect description of one of the party’s attendees as a “bystander.”
“‘Bystander’ means someone that is looking at an assault, and ― and the person named P.J. was not technically a bystander,” Ford said, explaining that P.J. had been downstairs when her assault occurred. “So I would not call him a bystander,” Ford concluded.
Moments later, Ford pointed to another passage from her previous statement where she had described Kavanaugh as having “pushed” her into the room where she says he attacked her. Noting that she had been pushed from behind, Ford observed that she couldn’t say for sure if it had been Kavanaugh or his friend Mark Judge who had done it, “so I don’t want to put that solely on him,” Ford reasoned.
In every response Ford gave, she moved her testimony toward a more literal and exact meaning.
In contrast, Kavanaugh took a very different approach to his own words, using his time to muddle their meaning and to steer the Judiciary Committee away from a clear understanding of the historical record.
Asked what the word “ralph” meant in his yearbook description of himself as the “Beach Week Ralph Club – Biggest Contributor,” Kavanaugh insisted the honorific wasn’t a celebration of excessive drinking, but just a harmless joke about his reputation for having, as he claimed, “a weak stomach, whether it’s with beer or with spicy food or anything.” As if teenagers regularly joke about having irritable bowel syndrome.
And when pressed what “boofed” and “Devil’s Triangle” meant in his yearbook entry, Kavanaugh said they referred to flatulence and a drinking game, respectively, even though plenty of people have convincingly pointed out that this was very much not what such words meant when Kavanaugh recorded them in the 1980s.
To be sure, a high school yearbook is not the U.S. Constitution. Nor does a yearbook entry usually merit the same sort of scrutiny that, say, the Ninth Amendment requires. Yet the legal conservative movement, of which Kavanaugh is very much a member, has made textual literalism a cornerstone of its public persona and a bedrock of its judicial philosophy.
And far outside the realm of constitutional interpretation, conservatives have used arguments about the “plain meaning” of language as a political weapon against progressives.
Just think of how much Republicans pilloried President Bill Clinton’s statement to the grand jury during the Monica Lewinsky investigation that a certain answer depended “upon what the meaning of the word ‘is’ is.” Or more recently, conservatives have scoffed at liberals’ support for the transgender movement’s expansive redefinitions of “male” and “female.” For them, such examples provide clear proof of how detached from basic reality liberals have become.
Given all that, one might expect Kavanaugh to not have played so fast and loose with language, especially words submitted to a Senate hearing.
But maybe it shouldn’t be so surprising. Judicial conservatives have never consistently applied one judicial philosophy to the Constitution. Although conservatives often speak of (and use) originalism and textualism interchangeably, they are in fact contradictions, and conservative judges often switch back and forth between the two, selecting whichever approach allows them to reach the decision they’d like to make.
Originalism is the idea that the Constitution should be interpreted only by what those words meant to the authors at the exact time they were written. Meanwhile, textualism posits that words have inherent, unchanging meaning outside of historical time and authorship. By switching back and forth, conservatives repudiate their own professed belief that the words of the Constitution can mean only one thing.
Judicial conservatives have never consistently applied one judicial philosophy to the Constitution. … By switching back and forth, conservatives repudiate their own professed belief that the words of the Constitution can mean only one thing.
Justice Antonin Scalia, Kavanaugh’s self-professed judicial model and conservatives’ most revered jurist, demonstrated such convenient inconsistency throughout his career. Although he described the Constitution as a “dead” document whose meaning could not change, he nevertheless took a very lively approach to how he chose to interpret it, a habit that earned him the dubious title “Justice of Contradictions” from one legal scholar.
In one oft-cited example, Scalia frequently argued the 14th Amendment outlawed discrimination based only on race ― not gender and certainly not sexual orientation ― because its authors had only been concerned with specifically banning racial discrimination after the Civil War. Yet, in cases that came before the court regarding affirmative action, Scalia discarded this originalist reading of the 14th Amendment, whose authors clearly would have supported affirmative action, to instead argue that a textual reading of the amendment provided no basis for such programs.
For Scalia, the boast of employing a neutral tool to interpret the simple text of the Constitution was always just a useful rhetorical cover to hide his highly ideological agenda. In his overtly politicized testimony to the Senate Judiciary Committee last week, Kavanaugh revealed how partisan he is, too.
Kavanaugh can claim he has no political agenda, that he believes only in enforcing the plain meaning of the nation’s supreme law. Still, anyone who would insist on the literal meaning of the Constitution’s words should at least first apply that same standard to their own.
Neil J. Young is a historian and the author of We Gather Together: The Religious Right and the Problem of Interfaith Politics. He hosts the history podcast “Past Present.”