Should Brett Kavanaugh be confirmed as the next U.S. Supreme Court justice? Depends who you ask. Democrats (mostly “nay”) and Republicans (mostly “yay”) are assembling their polemical narratives. Whether a man of “impeccable credentials” who “interprets the law as it is written” (thus the White House) or “your worst nightmare” about gun control (Senator Richard Blumenthal), who will “forever change your life if you are a young woman” (Senator Kamala Harris), Judge Kavanaugh is now another installment in the raging debate about what our democracy is becoming–or not. The partisan fight over Donald Trump’s latest nominee will rumble along until it reaches some kind of climax in the forthcoming Senate confirmation hearings.
Predictive Hermeneutics?
As is now the norm, Kavanaugh is being vetted for his legal history. Partisan warriors are preparing arguments based on hermeneutically-extracted fragments of the candidate’s former decisions and writings. The implicit assumption is that anything Kavanaugh once ruled about contemporary wedge issues (abortion, immigration, presidential authority, etc.) will determine his future stance on the Supreme Court (either a specific decision or the “legal philosophy” he will consistently apply).
Projecting people’s actions for years that lie ahead from what they thought a decade ago has its place–but it’s hardly a fool-proof algorithm. Think about your own career: do you want your boss to predict how you’ll make a decision in a complex situation tomorrow based on something you wrote years ago in a college freshman essay? If you’re striving to be a leader, shouldn’t people expect you to learn, develop, and grow in your judgment over time?
And isn’t that fundamental to what democracy is about–for people, and especially democratic leaders, not to follow mindlessly a given ideological line, but rather to listen and learn from one another, to grow more sophisticated about making decisions, and even sometimes change their minds? Doesn’t that make for a more unbiased and thoughtful Supreme Court? Isn’t that what we’re supposed to have?
A Thinking Leader Or A Partisan Robot?
So let’s suspend partisan fervor for a moment–and look upon candidate Kavanaugh as a potential leader joining the highest court in the land. Senators, please go beyond the predictive analytics of his past policy opinions. Don’t just ask Brett Kavanaugh whether he will, robot-like, judge just as he did in this or that case in the 1990s. Or eternally affirm a paragraph he once wrote for a now dusty law journal. Why not also ask questions about his capacity to become a wiser decision-maker in coming years? About how he expects to evolve his previous views as circumstances change? About his approach to learning on the job and developing as a leader over time?
Here are five different kinds of questions for probing this nominee, not as a partisan team player or lurking enemy–but as a would-be leader in one of our foremost democratic institutions:
1. “Mr. Kavanaugh, tell us about some bad decisions you’ve made in your previous work—and what you learned from those.” Everyone makes bad decisions sometimes—but the best leaders see mistakes as opportunities to improve, and learn from those setbacks. Reflecting on their errors, they gain perspective about how things go wrong, and how misunderstandings and prejudice get in the way of success. So, let us into your head, Mr. Kavanaugh, and relive for us some of your past bad calls—and how you grew better from them. And then explain what you’ll bring to your practice of decision-making as a Supreme Court justice, and reach for even higher excellence in coming years.
2. “What are some of the most common ‘cognitive traps’ that you struggle with in your decision-making?” New behavioral and brain science now explains why people often make bad decisions: why we tend to overemphasize bad outcomes over good as we draw on experience; why we often prioritize evidence to confirm what we already think; why it’s so hard to accurately estimate risk; how we misread social cues during a negotiation.
Everyone is caught, at least occasionally, by these and hundreds of other cognitive traps–but the best leaders become aware of when and how that happens to them. They are constantly reflecting about the biases and faulty estimations that could be affecting their own decision-making. The framers of the U.S. constitution didn’t have the advantage of this new science—so let’s update our vetting process. Why not ask, “Mr. Kavanaugh, what cognitive traps tend to bias your judgment? What do you do to compensate for those?”
3. “How well do you learn from—and shape—others in group decision-making?” On the Supreme Court you’ll be part of a collective effort to decide difficult cases—with eight other experienced judges. You’ve done group decision-making in your previous work–served on other judicial panels, worked in the Bush 43 Office of the President, and were part of the team supporting Ken Starr’s investigation of Bill Clinton.
Decision-making within a group has its own particular dynamics: every member in some way influences, and is also influenced by, other members, and helps mold the final collective decision. The best leaders know how to do that, and also appreciate the nuances of good collective decision-making—embracing diverse and inclusionary perspectives among members. They help others frame and synthesize problems to be tackled. They strive for a constructive balance between generalist pragmatism and deeper expertise of specialists.
So: “Judge, please reflect on your abilities for decision-making within a group. And then discuss the current justices of the Supreme Court—how do you expect to relate to these individuals, what will you learn from each of them? And what skills and experiences will bring to your new colleagues, to help improve the Court’s decision-making?”
4. “What critical future issues might make you reconsider your current beliefs about the law of our land?” Decisions of the Supreme Court will continuously influence the society and economy of America–and vice versa. Though “originalists” may strive to interpret the law per the intent of the Founders, even that intent must be contextualized within a continuing stream of innovation and change within our culture, and beyond: biomedical advances improving the span and quality of life; information technologies that enhance understanding but also threaten personal privacy and the integrity of democracy; global climate and demographic shifts that are altering the meaning of natural and man-made boundaries. So: “What, Judge Kavanaugh, do you see to be the greatest forces at work that will require new or different interpretations of our laws? How will those alter the way you make decisions as a judge in the future?”
5. “In summary, how will you grow in your job as Supreme Court Justice?” Will you get smarter, wiser and better in your decision-making over the next decade? In what particular ways? If you are confirmed, who will Justice Kavanaugh be in the year 2030? Will you be thinking or seeing the world any differently than you do today? How specifically will your growth as a leader bring more progress to tomorrow’s American people?
Originally published on Forbes.com