The One And Only Justice

With the president promising to announce his nominee for the Supreme Court mere days from now, Linda Greenhouse has taken to the papers to reiterate why the confirmation of Justice Neil Gorsuch was the worst ever, and why there is no excuse for the next nominee to not answer the one, the only, question that matters.

With the future of the court — indeed, of the Constitution as we know it — now at stake, it’s urgent for the senators and the public to understand that Mr. Gorsuch’s stonewalling of the Judiciary Committee was not consistent with historical practice and should not be viewed as a norm. Rather, it should be called out for what it was: a derogation of the democratic principle at the heart of Article III of the Constitution, the judiciary article that places the confirmation of life-tenured judicial nominees in the hands of the people’s representatives. Until recently, the modern confirmation process has assumed at least a modicum of substantive engagement between those representatives and the nominee.

She has a point, that Justice Gorsuch’s confirmation hearings weren’t exactly chatty. Then again, she ignores the tenor of the times, given that progressives were still outraged that Gorsuch “stole” the chair from Judge Merrick Garland, even though he was hanging in Denver at the time and had nothing to say about the denial of confirmation hearings in Washington. It also didn’t help that Democratic senators were haranguing Gorsuch over the “frozen truck driver” case, posed as man against corporations rather than law.

But Greenhouse, riffing off Senator Susan Collins’ statement that she will not support any nominee who shows “hostility” toward Roe v. Wade, proposes that as the litmus test of acceptability. This isn’t entirely wrong on her part, given that both candidates claimed during their campaign for the presidency that they would appoint Supreme Court justices who would rule for or against the right to abortion. Both were wrong to do so, and it is wildly improper to demand fealty on an issue of law from a judge in advance. But wildly improper was the best we got.

But here’s the question: If hostility to the Supreme Court’s 1973 precedent is a deal-breaker for Ms. Collins, how will she learn what the nominee really thinks? How will we the people know?

Is it wrong, as many contend, to ask a nominee her position on a Supreme Court precedent? What of the “Ginsburg Rule,” that it would reflect prejudice since a new case coming before her as a justice would appear to be a fait accompli, given responses at the confirmation hearing?

Not only is there no “Ginsburg rule,” but the two Republican nominees who came after her, John G. Roberts Jr. and Samuel A. Alito, were both more forthcoming than Justice Gorsuch. While both fenced with the senators about Roe v. Wade and refused to be pinned down, they each accepted the holding in Griswold v. Connecticut, the crucial pre-Roe decision recognizing a right to privacy that gave married couples the constitutional right to contraception. “I feel comfortable commenting on Griswold and the result in Griswold,” then-Judge Roberts told Senator Herb Kohl, a Wisconsin Democrat, during his 2005 hearing, “because that does not appear to me to be an area that is going to come before the court again.” (Let’s hope that’s still the case.)

So maybe not Roe, but at least Griswold? There are a few considerations that Greenhouse’s otherwise valid question ignores. First, the vicious partisanship reflected in the Gorsuch hearings, and the surrounding fury stoked by disingenuous pundits like Greenhouse, made his defensive responses the only rational tack. You want better engagement? Turn it down from 11, be slightly more honest in the rhetoric and acknowledge the fact that Trump isn’t nominating someone designed to appeal to the most progressive heart.

Second, we’re well past the point where Griswold is in issue, so a nominee refusing to affirmatively acknowledge that it’s the law isn’t credible, Ginsburg Rule or not. But will you be satisfied with that? The Magic 8-Ball says no. You want a nominee who says they will not reverse Roe. You want a nominee who says they will not limit Roe. You want a nominee who says they believe that the right to an abortion is a fundamental constitutional right.

While there is little expectation that Roe v. Wade could be reversed, despite the view that it reflects sound, if not absolutely necessary, public policy in one of the most poorly reasoned opinions issued, there is a possibility, if not likelihood, that cases will come before a future Supreme Court questioning the parameters of the right. Any nominee willing to announce her prejudice as to an issue she’s likely to consider doesn’t grasp ethics or the job. Everyone understands why Greenhouse wants an answer. Reasonable people understand why an answer would be improper.

But this is an outrage, that Trump should be able to put some abortion-hating hack on the Supreme Court and the senators are denied the opportunity to find out? There’s a fix for this. Roe was decided in 1973. In the decades that followed, Congress has failed to enact a law embodying the right to an abortion. They didn’t need to leave it to the Supreme Court to do their dirty work, and to protect it from subsequent challenge and limit. At any time since 1973, Congress could have acted, but it didn’t.

And the last thing ignored is that, as important as the right reflected in Roe v. Wade may be, there are a great many other issues, some of which may matter just as much, if not more, than abortion. What if the nominee says she loves Roe v. Wade, but is kinda meh on Brown v. Board? Or Gideon or Brady? Is Greenhouse willing to take bullet on race for the protection of abortion? So it seems.

24 comments on “The One And Only Justice

  1. Dan

    “In the decades that followed, Congress has failed to enact a law embodying the right to an abortion.”

    …and here we see the dishonesty of the abortion-rights advocates. They repeatedly tell us that there’s overwhelming public support for unrestricted abortion on demand. And if their “end of the world”, nightmare scenario takes place and Roe v. Wade (and its progeny) are overturned, the worst that will happen is that the issue is now returned to the states to legislate as they see fit. If they’re telling the truth about public support, they shouldn’t have anything to worry about.

    Reply
    1. SHG Post author

      The other day, I twitted a link to the opinion, as I suspect few passionate advocates have ever read Roe or grasp that it was a criminal case gone orthogonal. If reversed today, would the New York lege rush out and criminalize abortion? Alabama, maybe. And it could all be easily addressed but for the fact that it remains so highly controversial, if not in its basic premise, in its details.

      Reply
    2. Patrick Maupin

      Maybe, maybe not: if one supports abortions, gun rights, and the right not to bake, for which candidate should one vote? Finality is good; resolve one issue and move onto the next. But it is a commodity sometimes in short supply.

      Reply
      1. SHG Post author

        Resolve which issue? The most important issue is the one that directly affects you, so we’re all on our own pages even when others also happen to be on those pages more or less.

        Reply
        1. Patrick Maupin

          Most of the issues affect most of us, but, for example, it gets harder every year to find a Democrat who supports gun rights or a Republican who supports abortion rights — by some sort of purification and annealing process, support for or against a few issues has congealed along party lines.

          At least single-issue voters don’t have to think very hard.

          Reply
          1. SHG Post author

            On the surface, that would appear to be the case, but when somebody’s at risk, you would be surprised how little they care about issues that don’t actually affect them, or how little they would actually extend themselves to fight for an issue that’s only theoretical in their life.

            Reply
  2. B. McLeod

    Hilariously, these fools are piling on against the nominee before they even know who the nominee will be. Whoever it turns out to be HAS to be evil and unsuitable, because Trump is making the nomination. Just so, any questions and answers are irrelevant, and the pundits are simply dishonest in even pretending that anything the nominee says could possibly make a difference to their “analysis”.

    Reply
    1. SHG Post author

      Can a nominee, even one nominated by Trump, win over the public by her frankness, her honesty, her brilliance at the confirmation hearing?

      Reply
      1. B. McLeod

        A doubtful scenario. Probably only a few professors and some media pundits will follow the hearing, and the general public will get only short sound bytes misreporting it.

        Reply
  3. Richard Kopf

    SHG,

    A little history and then a modest proposal:

    1. “In 1925, the Senate for the first time summoned a Supreme Court nominee to testify before its Judiciary Committee. Harlan Fiske Stone’s appearance was brief, but the senatorial questioning was vigorous. The next five nominees escaped this personal interrogation, but in 1939 the committee requested Felix Frankfurter to appear. Although he eventually complied, Frankfurter complained that his views were a matter of public record. Since the 1955 nomination of John Marshall Harlan, all Supreme Court appointees have appeared before the Judiciary Committee.” (Citation: US Senate Nominations, available at https://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm#8.)

    2. “Until 1929 the practice was to consider all nominations in closed executive session unless the Senate, by a two-thirds vote taken in closed session, ordered the debate to be open.” (Citation: Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV. L. REV. 1146, 1157 (1988) quoted by Robert C. Post, Reva B. Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, p. 39 & n. 5, Yale Law School Research Paper (January 2006), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1173&context=fss_papers)

    3. Nothing good comes from grilling nominees to the Supreme Court. The Senators look foolish. The nominees look foolish. The present-day public view the hearings much as the ancient Romans watched the armed combatants who entertained audiences in violent confrontations with other fighters, wild animals, and condemned criminals (despite the fact that popcorn had not yet been invented).

    4. The Senate should foreswear calling nominees to the Supreme Court to appear before the Senate Judiciary Committee. Returning to the practice that existed for most of our nation’s history would serve the interests of everyone–including the Senate, the nominee, and the public. In this vein, the old should become new again.

    5. Most of all, returning to the traditions of our Republic would frustrate Ms. Greenhouse. That is reason enough to jettison the kabuki play that is now the Senate confirmation process for Supreme Court Justices.

    All the best.

    RGK

    PS I have given the internet citations without intending to violate your anti-hyperlink rule. So, please feel free to press the magic button that kills hyperlinks while still keeping the citations for those who might be inclined to copy and paste.

    Reply
    1. SHG Post author

      That a person nominated to be one of the Nine, a branch of govt unto themselves, should be subject to public scrutiny doesn’t strike me as a bad thing, tradition notwithstanding. That hearings make everyone look foolish is a choice of the participants, not an inherent flaw in the scheme.

      But can the genie ever be put back in the bottle? Somebody should ask Chuck Grassley.

      Reply
    2. Erik H

      Grilling by asking questions might not be that bad; we might even learn something. Who knows, though, since it’s never tried. On the other hand, “grilling” by speechifying and leading is pointless and painful to watch.

      Reply
  4. Scott Jacobs

    Senator: “Don’t you think that precedent is important and shouldn’t be over turned?”

    Nominee: “No, because I’m not an idiot. Unless you’re a big fan of the holdings of Minersville School District v. Gobitis, Bowers v. Hardwick, Dred Scott v. Sandford, or countless other cases where the court eventually reversed itself from positions we today find unconscionable, then you’d see that the court frequently reversed itself, and for good reason. Now, were you going to ask a question that makes sense or doesn’t scream that your constituents elected an idiot, or were you going to sit there and scold me for a few more minutes?”

    Reply
        1. Hunting Guy

          Just so you know, I sent your name to President Trump.

          Should we start a petition at change.org for you?

          Reply
      1. MonitorsMost

        It might not be a horrendous strategy either. The senators are used to people being meek and mild. They don’t know the law a 10th as well as the nominee. All of their preparations are geared toward stupid questions to score Political points with their bases. Thomas shamed Biden pretty well by yelling at him and got an up or down vote he probably wouldn’t have if he had just sat there and taken it.

        Reply
        1. Scott Jacobs

          Senator: “Thank you for speaking with us today. You know, my constituent and I communicate, and they have been telling me-”

          Nominee: “Senator I’m sorry to interrupt you but would it be all right if you skipped your four-and-a-half minute performance for your constituents, and skip right to your actual question? I know you have to preen and score points with the right groups if you want to get re-elected, but I’m really excited for you to ask me a question about a legal decision from several decades ago that you haven’t read in its entirety, and don’t even understand the small bits your staff or some interest group highlighted for you.”

          Senator: “I do not appreciate being spoken to in this manner!”

          Nominee: “And I don’t appreciate having to sit here and be lectured by people who, despite being in the Senate, don’t have a functioning grasp of how the law works. So how about we call it even and get to your strawman argument where you try and trick me – with all the skill and tack I might expect of a rather dim six-year-old – into revealing how I might rule in a case that might be before the court.” *takes a sip of water while staring at the Senator*

          Reply
          1. Lee

            You know, such a nominee would be an entirely fitting choice for president Trump. And said nominee would be a hit with Trump voters who are tired of the same old b******t coming out of Washington.

            Reply
  5. Dan

    If she’s talking about the intent of the Constitution, it might be worth pointing out that the Senate was not intended to represent “the people”, but rather the states as a whole–hence why senators were to be chosen by the respective state legislatures, rather than elected directly by the people. No longer the case, of course, but…

    Reply

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