Balls and Strikes: John Kennedy’s Judicial Pop Quizzes Are Thirsty and Annoying

In the News

Jay Willis

This excerpt is from a piece that originally ran on March 1, 2024.

This, by my estimate, is the same answer you’d get from 98 percent of his colleagues in the legal profession, most of whom did not “comprehensively” read the Federal Rules of Evidence in law school, either. Even among practicing lawyers, the only people who sit down to “read” the Federal Rules of Evidence’s annual updates cover-to-cover are evidence professors, perverts, or some combination thereof. This is because the skills that are important to being a good lawyer, let alone a good judge, are not rote memorization of landmark cases or instant recall of pincites. As the Alliance for Justice’s Jake Faleschini put it to Headley, Kennedy’s conception of the law seems to ignore the fact that after their confirmations, judges will have access to things like libraries, clerks, WestLaw, and Google.

Any lawyer will tell you that they forget almost everything they learn for the bar exam, an antiquated institution that exists mostly to line the pockets of test prep company executives. Reproducing this dynamic in the Senate Judiciary Committee yields nothing other than the occasional viral video, which sort of betrays their real purpose: Kennedy, like all senators, enjoys attention, and roasting someone for not knowing chapter and verse is a low-effort way to get it. Terrified nominees who spend their time trying to game-theory his likeliest trivia question are not learning anything; they’re just studying to a meaningless test, or at least, what they imagine that meaningless test might look like.

Judicial confirmation hearings have long been more political theater than anything else. But Kennedy’s little stunts highlight just how silly and divorced from reality they’ve become. If a senator really cares about how a judicial nominee would perform if confirmed, there are better ways to figure this out that do not involve making someone squirm for the purpose of making someone squirm: questions about one’s judicial philosophy, for example, or about one’s values, or about how one views the role of a life-tenured judge in a political landscape in which life-tenured judges accrue more power with each passing year. Those questions would earn him fewer retweets, though; hence, more dumb gotcha bullshit instead.