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.