The Senate is about to hold hearings on Ketanji Brown Jackson, President Biden’s nominee to replace Justice Breyer on the Supreme Court. We all know the script. Supreme Court confirmation fights today are about hiding the ball. Nominees generally say nothing about how they’ll decide cases; supporters attest to their brilliance and good character; opponents try to gin up scandal.
In reality, the parties have profoundly different views about what the Constitution means. Their different views have enormous implications for the way we govern the nation’s economic and political life. But virtually none of this gets a hearing in judicial confirmation hearings. Instead, we hear how badly or brilliantly the nominee will call the balls and strikes.
To be sure, a few major issues break through. Even a casual observer of the media circus surrounding recent Supreme Court nominations can make out that Democratic nominees believe the Constitution protects a woman’s right to equality and bodily autonomy and therefore to abortion; similarly, it’s clear that Republican nominees believe the Constitution flatly forbids affirmative action in higher education. But outside these brightly lit hotspots, Americans are mostly in the dark.
This is no way to run a constitutional democracy. For most of the nation’s history, Americans fought about their rival views of the Constitution in a different way: through regular politics, not judicial confirmation hearings. They began from a wiser premise,...
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