When President Donald Trump announced his nominee for the Supreme Court on Monday, he said he wanted someone who could set aside his political views "to do what the law and the Constitution require." Brett Kavanaugh followed by saying a judge "must interpret the law, not make the law."
It's a classic conservative approach. You read the law and the Constitution, and then you follow them to the letter. Call it strict construction, judicial restraint or originalism. It's as easy as following the directions on a Duncan Hines cake mix.
Except it's not. Even the most carefully drafted laws — unlike, say, the 2017 tax reform bill, which was 500 pages long and passed in haste — have provisions that are complicated, imprecise or untested. The courts have to assign meaning to passages that even Congress didn't fully understand.
The Constitution is even murkier. It does, of course, include some language that is blindingly clear. When it says the president must be at least 35 years old or that the Senate consists of two members from each state, there is no room for misunderstanding.
But other phrases are so lacking in specificity that they practically invite the reader to determine the meaning — sort of like a Rorschach test. Among them are such crucial terms as "freedom of the press," "unreasonable searches and seizures," and "equal protection of the laws."
Robert Bork, whose Supreme Court nomination was voted down in 1987, found the Ninth Amendment — which protects certain rights that it does not identify — so baffling that he compared it to an inkblot.
Saying you will apply the laws and Constitution as written is like saying you will always do the right thing. It reveals nothing about what the actual results will be.
The conservative claim to adhere to the language of the Constitution is not nearly so strict or faithful as it purports to be. We know that because conservatives often oppose certain Supreme Court interpretations before they happen and when they are issued, only to go along with them later.