Kavanaugh proves one of the nine justices is not like the others
Kavanaugh didn’t so much ask questions as make statements. The types of statements that should have come from the government’s attorney, not a justice. When he did ask questions—well, here’s an example of a “question”:
Is that presumption based on what we think was really going through Congress’s mind at the time or is it based on a constitutional overlay, because what was really going through Congress’s time [sic] in 1996 was harshness on this topic. Is that not right?
Kavanaugh didn’t even pretend he possesses the independence required for a justice.
Neil Gorsuch, by contrast, pivoted back to Justice Stephen Breyer’s question when he felt it had gone unanswered, and made queries that, unlike Kavanaugh’s, didn’t presume an outcome. His questions were also consistent with conservative legal beliefs—as distinguished from partisan policy positions.
For example, Gorsuch asked whether, in the event the government had been aware of an immigrant eligible for mandatory detention for 30 years and chosen not to act, it could still take that person into custody 30 years later. In other words, “Is there any limit on the government’s power?”
Justices often pose hypotheticals, detailed grammatical questions bearing on statutory interpretation, and comparisons to other cases and statutes. They may nudge an attorney to explore an argument or to respond to the opposing party’s argument. What they don’t do is argue the case for the attorneys before them. Until Kavanaugh.