Monday, March 20, 2017

What the Senate Should Ask Judge Gorsuch

[ed. See also: The Case Against Neil Gorsuch and Neil Gorsuch Is No Originalist.]

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.

by Jeff Greenfield, Politico |  Read more:
Image: Getty