When Judge Neil Gorsuch faces the Senate Judiciary Committee on Monday, will we see a series of crisp, clear exchanges on the nature of the Constitution, the role of precedent, the limits of presidential power? Or will we see what one legal scholar called “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis”?
If the last 30 years are any guide, put your money on the second option.
Ever since Judge Robert Bork offered the Senate an honest account of his judicial philosophy in 1987 and watched it torpedo his chances, nominees have steadfastly refused to engage on controversial legal issues—insisting that they must avoid prejudging cases by remaining silent about any significant issue that might conceivably come before the court. Those nominees include Elena Kagan, the legal scholar who authored that 1995 jab at the process, and who notably lost her enthusiasm for revealing questions and answers when she was the one being questioned as a nominee.
Modern nominees decline as well to offer assessments of virtually any past Supreme Court decision, beyond embracing Brown v. Board of Education—the school desegregation decision of 1954—and taking a swipe at the Dred Scott decision of 1854 that declared slavery the law of the land. (Justices Antonin Scalia and William Rehnquist hold the record for such discretion: During their 1987 confirmation hearings, both refused to commit even to Marbury v. Madison, the 1803 decision that established the Court’s power to strike down laws as unconstitutional.)
The result has been a series of elaborate, ritualistic exercises designed chiefly to make political points in front of the TV cameras. (Many of the senators will make eight-minute statements followed by a question mark.) Democrats will ask Gorsuch whether he believes there is a right of privacy in the Constitution. He will say yes. Then they will ask if that includes a woman’s right to terminate a pregnancy. He will say that issue might well come before the court, and will decline to answer. Or, like John Roberts, he might acknowledge that Roe v. Wade established a precedent, but will not say whether and how that precedent might be overruled. They will ask whether the Constitution limits the president’s power, wrapping such questions with denunciations of President Donald Trump’s travel bans, and point to memos Gorsuch wrote while in the Bush administration, embracing a robust view of that power. He, and the Republicans on the panel, will note that he was serving as an advocate back then, and no conclusion can be fairly drawn about how he might rule as a Supreme Court justice.
Democrats will ask Gorsuch why he rules so often in favor of corporate and business interests. He will say his job is to apply the law, not to reach beyond it to make political judgments. Or Gorsuch might be asked which justices he most admires, a backhand way of asking what judicial philosophies he admires; he could well respond by offering diplomatic praise for the two justices he clerked for—Byron White and Anthony Kennedy—and leave it at that.
Gorsuch’s opponents will have combed the record, looking for any writing or statement that could prove troublesome. Back in 2009, Justice Sonia Sotomayor found herself having to explain over and over—to every Republican on the panel—what she meant when she said in 2001 that: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
And the process is made worse by the uncertain grasp that many of the senators, on both sides of the aisle, have about the subtleties of constitutional law. (I am waiting for the day when an exasperated nominee challenges members of the committee to ask a question without reading from the talking points prepared by their staffs; in many cases, the silence would be deafening.)
So, faced with a nominee likely to shield himself by invoking “the Ginsburg Rules” (named after Justice Ruth Bader Ginsburg’s determination to offer no “hints” “previews” or “forecasts”), are there any questions that might offer a chance to draw Gorsuch into a genuine glimpse of his thinking? It’s worth a close look, since if a hearing features nothing more than partisan oratory and skillful evasions, it might be better just to call the whole thing off.
Considering the areas likely to dominate the hearings, and in which the public has the greatest interest in knowing the answers, here are some proposed questions that might help cut through the usual charade and give us a chance for a genuine window into Gorsuch’s thinking.
Thanks in large measure to Scalia, this has become a key dividing line between “conservative “ and “liberal” jurisprudence. If, as Scalia gleefully proclaimed, the Constitution is “dead—dead—dead,” it means that it must be read in the context of its creation. The idea of a “living Constitution,” in which new rights emerge based on the changing nature of society—rights like same-sex marriage and abortion—is for originalists a profound misreading of the Constitution. For proponents of a “living” Constitution, on the other hand, its flexibility is the key that allows a society to adjust to changing times.
Asking Gorsuch point-blank whether he believes in “originalism” or views the Constitution as a “living” document is an invitation to a linguistic tap dance. A better course would be to frame the issue specifically. For instance:
“The Eighth Amendment forbids ‘cruel and unusual punishment.’ But it doesn’t define the term. If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”
Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”
Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.
The Role of the Courts
As noted, nominees are notoriously gun-shy about offering views on past decisions, but the right questions can at least try to elicit a substantive answer about how far courts have used and should use their power, or at least lure the nominee away from the “repetition of platitudes” of which Justice Kagan complained. Here’s an example:
“One of the most common complaints about the judicial branch is that ‘judges should not legislate from the bench.’ On the assumption that you share this view, could you give me, say, two or three examples from the past where the Supreme Court has legislated from the bench?”
If Gorsuch declines, it will give a questioner the chance to point out that conservatives have had no problem in issuing expansive decisions that reached well beyond the contours of the case to turn their political preference into constitutional law (most notably in the Citizens United case that struck down limits on political money). Or, a refusal to answer could raise a broader follow-up question for Gorsuch: Does “legislating from the bench” simply mean that the critic doesn’t like the decision the court reached?
The Ninth Amendment
Given his conservative credentials, Gorsuch is expected, by friend and foe alike, to join conservative justices in deploring the “invention” of constitutional rights—abortion, gay marriage—not enumerated by the Founders. But there’s at least one specific amendment that deserves the attention of the Judiciary Committee, and the nominee, because it at least implies that the Framers themselves believed that there were rights beyond the ones they enumerated. It’s an important question in itself, and also offers a second point of entry to the question of just how flexible a document he might find the Constitution.
So imagine a senator asking this of Gorsuch: “The Ninth Amendment states, ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ The late Justice William Brennan said in an opinion that ‘the Ninth Amendment simply lends strong support to the view that the liberty protected by the Fifth and 14th Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.’ Was he right? Doesn’t its existence suggest that the Framers were open to the idea that the idea of ‘liberty’ has to be read expansively?”
For millions of Americans, abortion is the first, if not the only, issue they think about when it comes to the Supreme Court. It’s why many on the right embraced Trump despite his “problematic” character; he’d promised to name a justice who would overturn Roe v. Wade. It’s why Democrats on the Judiciary Committee always begin their inquisition of Republicans by asking whether they believe there’s a right to privacy in the Constitution, and then asking whether that includes abortion. And it’s why nominees twist themselves into knots to avoid giving a straight answer. (At his hearing, Clarence Thomas, who was in law school when Roe v. Wade was decided, claimed he’d never even had a conversation about the case and claimed that since becoming a judge, he’d “stripped” himself of his many past pro-life stands.)
But there may even be a way to approach an issue this sensitive—after Gorsuch has, as he certainly will, declined to answer the question directly.
“Judge, candidates for president used to say that had no ‘litmus test’ for nominees. But last year, both candidates said emphatically that they did have such a test. Secretary Clinton pledged to appoint only nominees who could protect ‘a woman’s right to chose.’ Donald Trump pledged only to appoint nominees who would overturn Roe v. Wade. So why shouldn’t we take the fact that he chose you as convincing evidence about how you would vote on such a matter? In fact, given his pledge, wouldn’t it have been incumbent on you to warn President Trump if there was any reason to think you might not vote that way?”
That question, by the way, could come just as easily from a fervent opponent of abortion—like Ted Cruz or Mike Lee—as from an ardent supporter, like Dianne Feinstein or Patrick Leahy. And, even if Gorsuch politely declines to engage, it would spotlight the degree to which presidential candidates and presidents seek to avoid choosing a justice who will “surprise” them, in the way David Souter, appointed by George H.W. Bush, turned into one of the more liberal members of the court.
I offer these suggestions knowing that they comprise a modest proposal. Nothing will stop the members of the committee from posturing before a television audience, making speeches that are questions in form only, and repeating the same points ad nauseum. But it’s worth at least trying to see whether, in the midst of all the heat a Supreme court nomination triggers, there’s a chance for a little bit of light.