Cornyn is a thoughtful fellow, but he is having the same problem shown by other Republicans in these hearings — he is striking the chords of grand sentiments and theories of jurisprudence without bringing things to a sharp question that would induce the nominee to explain some arguments in giving an account of herself.
He wants to draw her into admitting that, in her view, the Court can reach decisions so striking that they mark a real change in the meaning of the Constitution. But he spends his time asking whether she agrees that the Constitution can be changed only through the process of Amendment. He should take any critical decision — perhaps Roe v. Wade — and ask her: Does the Constitution mandate the right to abortion, as bound up now with the meaning of the Constitution, as though it were actually contained or woven into the text itself? If not, in what respect would she regard that “right” as different, or lesser, in any way from any right explicitly mentioned in the Constitution?
He raises the question of a government confined to certain “enumerated” powers and ends. But he can’t get any traction with that. We know, though, that she was deeply opposed to the Lopez case (1995), in which the Court seemed to launch on a path of cutting back the reach of the commerce clause. Clarence Thomas complained that, if the Congress could bar the use of guns near schools, there would be nothing to bar Congress from taking over the functions of local policing or any the functions that we associate with local government. And so why not put that very question to her? Does she have an answer to Clarence Thomas?
In Lawrence v. Texas (2003), the Court struck down Texas’s sodomy laws with an opinion so sweeping that it called into question any adverse judgment on the sexual relations entered into by consenting adults. Justice Kennedy insisted, though, when challenged, that the logic of his opinion would not virtually entail same-sex marriage. To which Scalia responded, Do not believe it. I would like to see one, just one of the Republican senators ask her whether she could defend Kennedy here, and then tell us: If we accept Lawrence v. Texas, on what grounds could the judges refuse to install same-sex marriage?
What the Republicans keep missing are the possibilities that open up when we ask her simply to explain the reasoning in the cases, which would offer some sense of how she herself would reason about these puzzles. She could say, of course, that she shouldn’t discuss any questions such as abortion or same-sex marriage, because they could come before her when she is on the Court. But that answer could be used by any of our own nominees in the future when the attempt is made to put them on the defensive on the issue of abortion. The advice again: get away from grand slogans and theories fit for bumper stickers — draw her out on the cases as a way of letting her reveal the way her mind moves, and the paths along which it moves.