Reblogged:Will on Kavanaugh

[Gus Van Horn blog]

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George Will comes up with about a dozen questions he'd like to see asked of Supreme Court nominee Brett Kavanaugh. It is illuminating to consider how many of these would change, or even remain issues for long were our culture more individualistic and our political system becoming more capitalist. In several cases, one can't get very far into the question before it is apparent that it wouldn't. Let's consider three, in order of appearance. My comments follow Will's questions in italics:

• The Constitution vests in Congress the power to tax. Presidents, however, unilaterally impose taxes (tariffs) because Congress has delegated to presidents vast discretion in imposing protectionism. Should the court protect the separation of powers by enforcing on Congress a non-delegation doctrine? This is a good question that would remain relevant until we amended the Constitution to abolish this barbaric practice.
• Are there constitutional limits on the admissions policies that public colleges and universities can use to ensure "diverse" student bodies? This is a question that would mostly go away since education, save perhaps for certain functions of the government, like the military academies, should be privatized. That said, it would remain interesting to hear Kavanaugh's thoughts on government institutions being desegregated versus having hiring quotas.
• Finally, to serve the government's interest in a healthy workforce, and its interest in minimizing the substantial effect of health care costs on the nation's commercial vitality, could Congress, under its power to regulate interstate commerce, require Americans to eat their broccoli? If not, what principle limits Congress' Commerce Clause power? First of all, the whole idea of "the public interest" is antithetical to individualism. Second: Health care costs? For whom? That such a question exists at all is a direct result of the improper ethical view that we are our brothers' keepers and its political correlate that government is responsible for medical costs (with the corollary that the government can issue orders to individuals in order to reduce said costs). This question would have been regarded as ludicrous half a century ago and will, I hope, one day again be regarded as such. So long as what someone eats harms only that individual, he should be free to make his own decisions.

This is hardly to dismiss these questions as irrelevant. Our Constitution is not free of error and our government has taken on many improper tasks, especially over the past few decades. There are many cases in which no matter what the decision, the government will violate individual rights. Knowing that, it is crucial to understand the underlying judicial philosophy of a given nominee. Will this cause him to strike down laws and bad precedents that clearly violate individual rights -- or make excuses for more of the same? On which issues will his virtues help the most and his vices harm the most? Are some areas of law, like reproductive freedom, under more threat than others from future possible court rulings? Perhaps that is what Will gets at with some of his other questions, such as those regarding Lochner, although not from a pro-laissez-faire perspective. In that sense, I agree with Will that Congress could stand to ask more substantive questions of this nominee.

-- CAV

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