Go Ahead, Neil Gorsuch, Tell Us What You Think
What if we held a confirmation hearing and the Supreme Court nominee actually answered the questions? Conventional wisdom considers that impossible in today’s political climate, but conventional wisdom is wrong. Politically, senators are going to vote the way they want regardless of what the nominee says. And ethically, there’s nothing wrong with a nominee speaking about Supreme Court precedent or issues that might come before the court in the future, unless the nominee commented specifically on the facts of a particular case.
The political rationale that leads nominees to bob and weave, avoiding almost all meaningful questions, has been around for 30 years. Roughly, the idea is that Robert Bork’s nomination was blocked in 1987 because Democrats successfully depicted him as outside the mainstream. To avoid Bork’s fate, justices should avoid answering questions as he did.
As a historical matter, this account is open to question. The Senate that rejected Bork 58-42 had 54 Democrats in it. They could have -- and almost surely would have -- rejected Bork even if he hadn’t answered questions forthrightly at his hearing. Bork had a long record as a professor and a Department of Justice official, and his broad views were well known.
Leaving history aside, a nominee today can obviously be rejected without answering questions. The ultimate case in point is Judge Merrick Garland, President Barack Obama's pick for the seat vacated by Antonin Scalia's death. He was blocked by Republicans without being given a hearing at all. That’s definitive proof that senators don’t need cover from a nominee’s answers to block the appointment.
So if the assumption that a nominee has to duck the issues to get confirmed is wrong, that leaves the official reason nominees use: It might prejudice their judgment in future cases.
The trouble with that reasoning is that opinions about cases and issues don’t prejudice future cases. If they did, then no lawyer who has ever expressed a view on any issue could be a judge. Indeed, even more absurd, sitting judges wouldn’t be able to decide cases if they had ever written opinions touching on the same issues before.
You can divide the prejudice theory into two parts: commenting on past precedent, and commenting on issues that might come before the court.
When it comes to precedent, criticism or praise of past decisions wouldn’t force a justice either to adhere to precedent or to reverse it. Every law student reads and comments on important precedents. Every decent lawyer does the same in areas relevant to his or her practice. And sitting judges both apply precedent and occasionally question them, the way Judge Neil Gorsuch questioned the Supreme Court’s Chevron doctrine, which has to do with how courts and agencies interpret vague laws, in an opinion.
Nothing in these normal practices would bind a justice in a future case. Gorsuch is free to seek to overturn the Chevron doctrine if and when he goes on the Supreme Court. He’s also free to decide it’s a precedent that should remain in place. He’s already explained his views in an opinion, and it wouldn’t make any difference if he explained them to the Senate under oath.
It’s also ridiculous to think that litigants in future Chevron cases would somehow be prejudiced by what Gorsuch has written before or by what he might have said. Sure, smart litigants will try to figure out what the bench thinks. But that’s just part of the normal course of litigation. They already look to a judge’s past opinions and publicly expressed views. Senate statements would be no different.
As for issues that might come before the court, there’s also no reason for a judge’s views to prejudice outcomes or litigation. Take the emoluments clause, which Gorsuch was asked about. If Gorsuch said generally that he thought as a matter of original intent the constitutional clause couldn’t be litigated before the courts, that wouldn’t be a reason to recuse himself later if the issue arose. He could change his mind based on new historical evidence or legal reasoning.
The only thing a nominee shouldn’t do is comment on a specific case that is before the courts and that might come before the Supreme Court. Litigants should be able to assume that judges approach their cases without forming an advance view of the facts and the application of law to their specific facts.
But there’s no logic to saying that judges should approach every case with an open mind on the law. The law has meaning independent of the facts of the particular case.
Most and maybe all lawyers and judges know that the nominee’s dance is absurd. Writing in 1995, then-professor Elena Kagan described Justice Ruth Bader Ginsburg’s confirmation hearing technique as a “pincer movement.” She wouldn’t answer any specific questions, but when asked general ones, she said she didn’t like to speak in generalities. This left little to no room between “Ginsburg's understanding of what counted as ‘too specific’ (roughly, anything that might have some bearing on a case that might some day come before the Court) and what counted as ‘too general’ (roughly, anything else worthy of mention).”
Kagan’s characteristically arch observation captures the silliness of the confirmation dance, which she herself then performed skillfully at her own confirmation hearings.
It’s time to get beyond the silliness. Here’s to the future nominee who goes all in and answers senators with the truth -- the whole truth.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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