Supreme Court nominees should be obliged to give substantive answers to serious questions during their confirmation hearings: I’ve pressed that argument in columns over the years, on the grounds that senators can’t fulfill their duty to check and balance the judiciary unless they insist on exploring the constitutional philosophy and legal reasoning of the nominees before them.
But senators don’t insist. Would-be justices are allowed to get away with fuzzy generalities when asked to discuss the meaning of constitutional texts. When probed on whether contentious cases were rightly decided, nominees retreat to platitudes about “stare decisis” or to banal mush about deciding every case on its merits. However dignified the Judiciary Committee’s proceedings, they trivialize the confirmation process by turning it into what law professor Elena Kagan, in a 1995 essay, called “a vapid and hollow charade” — a charade replicated when Kagan herself was nominated to the Supreme Court 15 years later.
This week it’s being replicated again with Judge Neil Gorsuch.
In his opening statement on Monday, Gorsuch — graceful, learned, and self-deprecating — described the judiciary the way all Supreme Court hopefuls do. “We sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially,” Gorsuch said. “If I thought that were true, I’d hang up the robe. . . . Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy.” And, he said, it reminds him that judges must never imagine themselves to be “secret legislators, declaring not what the law is but what they would like it to be.”
But Supreme Court justices do legislate. Again and again they render decisions that dramatically shape American law: Legalizing abortion. Banning school prayer. Requiring Miranda warnings. Disallowing unequal voting districts. Mandating lawyers for the indigent. Nominees coyly deny it, but the Supreme Court is, in effect, a super-legislature, and has been for generations.
In a famous lecture nearly a century ago, Judge Benjamin Cardozo described how the judiciary is often expected not just to find the law, but also to make it. The judge “legislates . . . between gaps,” said Cardozo. “He fills the open spaces in the law.” Notwithstanding Gorshuch’s disclaimer, to put on the robe of a Supreme Court justice is to occupy not a “modest station,” but an immensely potent one, one with virtually no accountability, and with life tenure to boot. Before the Senate invests Gorsuch or anyone else with such extraordinary power, it has a duty to explore what he intends to do with it.
It won’t. The politics get in the way.
The Constitution’s framers envisioned a judiciary independent of political pressures. Yet from the outset politics have pervaded the courts. George Washington filled the court entirely with members of his own party; nearly every president since has followed suit. Heated political opposition to Supreme Court nominees isn’t new, either. It’s been common — from Louis Brandeis in 1916 to Abe Fortas in 1968.
Politics drove the furor over FDR’s court-packing scheme in 1937. Ted Kennedy’s savage attack on Robert Bork 40 years later kept one of the nation’s greatest legal minds off the court. Ruth Bader Ginsburg publicly deplored Donald Trump’s campaign for president. And every presidential election is routinely described as a crucial battle for control of the Supreme Court.
Yes, Gorsuch should be made to give answers to serious legal questions. But Republicans — like Democrats on previous occasions — are not going to jeopardize his confirmation by insisting on it.
The Supreme Court has never been above politics. Which is why Supreme Court confirmation hearings, alas, are never really about the law.