Monday, March 27, 2017

Separation of Powers Better Justifies SCOTUS Nominee Reticence Than Judicial Impartiality Does

by Michael Dorf

Last week, I joined the chorus of academics decrying the futility of most of the questioning of Judge Gorsuch and other recent SCOTUS nominees. In a column, I agreed with Joe Biden's characterization of confirmation hearings as a "kabuki dance," even as I suggested that the hearings have some incidental educational value for the public. Then, in a blog post, I argued that Judge Gorsuch had introduced a new way for nominees to evade senators' questions: By characterizing just about every question as seeking his "personal"--and thus ostensibly irrelevant--opinion.

Judge Gorsuch also relied on the tried and true method of declining to answer questions about past cases on the ground that doing so would require him to pre-judge issues that could come or return to the Supreme Court, and thus compromise his impartiality. As numerous commentators have previously observed, this particular piece of conventional wisdom is highly dubious. If commenting, even tentatively, on whether he thought, say, Citizens United v. FEC or Obergefell v. Hodges, were rightly decided as an original matter would compromise Judge Gorsuch's impartiality in a future case seeking to construe their scope or overrule them, then, a fortiori, Justice Kennedy's impartiality is compromised in such future cases because he authored the majority opinions in both Citizens United and Obergefell. Yet no serious person thinks that Justice Kennedy (or the other justices who ruled on those cases) should be recused from any such future cases.

Accordingly, principles of judicial ethics do not justify the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse. In the balance of this essay, I want to suggest that there might be a somewhat better justification for that excuse: separation of powers.

Before getting into the substance of the argument, I should state that I do not find it especially persuasive. I am merely offering an argument for the no-comment excuse that stands up to scrutiny somewhat better than does the judicial ethics justification. With that disclaimer out of the way, I can state the core of the separation-of-powers argument for the no-comment excuse simply:

We don't want senators or, for that matter, presidents, asking SCOTUS (or lower court) nominees to forecast in great detail how they will decide future cases because in so doing, the Senate and the president would be usurping the judicial function in violation of separation of powers.

Imagine a concrete case with identifiable parties. Let's take one of the travel ban cases now being litigated in the federal courts. To paint with a very broad brush, these cases present three categories of questions: (1) Threshold justiciability questions like standing and ripeness; (2) questions about the scope of constitutional protection limiting the actions of the government with respect to aliens outside the U.S.; and (3) substantive questions of constitutional law, such as the relevance of public statements by a presidential candidate to determining the purpose of a law under the Establishment Clause. Notably, all three of these sorts of questions are constitutional issues as to which the courts prevail if their answers conflict with the answers given by the political branches.

Thus, just as Congress could not overrule the courts on constitutional matters by an ordinary statute and the president cannot do so by executive order, we might want to say that an effort by the president or Senate to secure from a prospective justice a commitment to decide a concrete pending case in a particular way usurps a judicial function. Plaut v. Spendthrift Farm says that Congress cannot reopen final judgments of the courts, and while Congress has wide latitude to change the law governing existing cases (including by referring to specific cases as a kind of shorthand), the actual resolution of particular cases (even without reopening final judgments) will strike many people as problematic as a non-legislative function.

To be sure, there is no general prohibition on Congress deciding concrete cases. The Bill of Attainder Clause of Article I, Section 9 forbids Congress from imposing punishment, but there is a long (if now largely unused) tradition of so-called private bills that confer particular benefits. So it is possible that some congressional interventions in concrete cases would not violate a norm of generality--even if they were nonetheless highly unusual.

But even apart from the due-process-y concerns pertaining to individual litigants, Senatorial or presidential resolution of either a constitutional issue or an issue of statutory construction is problematic as a kind of illicit shortcut. Neither the Senate nor the president has the power to overrule the courts on constitutional issues, except insofar as the Senate can participate in the Article V amendment process. And with respect to statutes, an effort to overrule the courts' interpretation must go through the Article I, Sec. 7 process of bicameralism and presentment. Thus, obtaining constitutional or statutory rulings via extracting a promise from a SCOTUS nominee about how he will vote on particular issues circumvents either Article V or Article I.

The foregoing separation-of-powers justification for the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse redirects our attention from supposed impropriety on the part of the nominee to the attempted impropriety on the part of the Senate or the president. And it does so in a way that seems to line up with existing practice.

Consider that while Judge Gorsuch was unwilling to condemn the GOP stonewalling of Judge Garland's nomination because that was what he called "political," he stated emphatically that if President Trump had asked for a commitment to overrule Roe v. Wade, he (Gorsuch) "would have walked out the door." Why? Why not simply say "I'm sorry, Mr. President, I can't comment on that because doing so would be for me to pre-judge the issue."? The answer, I think, is that Gorsuch meant to imply (or at least is best read to have implied) that the impropriety is in the pressure from the president, not just (or even necessarily at all) in the answering of the question.

Lest readers think that I have satisfactorily justified the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse on separation of powers grounds, I now want to problematize it by recognizing that judicial appointments are a legitimate means by which the political branches influence constitutional and statutory interpretation. I'll focus for simplicity on constitutional interpretation.

One need not go so far as Bruce Ackerman goes in describing "transformative appointments" as informal constitutional amendments to recognize that, given the difficulty of amendment under Article V, judicial appointments play a critical role in transmitting the contemporary understanding of the Constitution held by Us the People to the courts. Does that fact fatally undermine the separation of powers justification for the  I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse? It does--unless we can say that the appointments process is a legitimate means for presidents and the Senate to influence the courts in their general approach to constitutional interpretation but not in their application to specific questions.

What could justify that distinction? I confess that I think that the right answer could be "nothing"--which is why I think that the separation of powers justification ultimately might fail, but it is at least possible to sketch the outline of a plausible answer. The basic argument would have two elements.

First, it would emphasize the generality of legislation relative to adjudication. That idea is ingredient in the discussion above of bills of attainder and special bills. It is also standard fare in high-school-civics versions of the difference between legislation and adjudication. In a nutshell, legislation is general; adjudication is specific.

Yet that distinction doesn't quite work here, because the specificity of questions that are verboten under the established norm--such as whether there is a constitutional right to abortion or to possess a firearm for personal protection--are in fact sufficiently general to count as legitimately legislative rather than solely adjudicatory. But perhaps a different general/specific line could be maintained for this purpose. I don't know exactly what that line would be, so I'll just move on to the second argument that might be advanced to justify a general/specific distinction with respect to the sorts of questions that presidents and senators may legitimately inquire about.

Second, insofar as constitutional adjudication is meant to constrain political actors, one might argue that input into the judiciary via the appointments process enhances the legitimacy of constitutional adjudication when it transmits general values, but that if such input becomes too specific it undermines the point of judicial review as a check on such political actors. I think there is much to this idea, but I also think it is difficult to get from the principle to any particular line between acceptably general questions and unacceptably specific ones.

Finally, I do not mean to say that separation of powers, any more than judicial ethics, is the real reason why nominees refuse to answer specific questions. The real reason that SCOTUS nominees do not comment on controversial cases is that they want to be confirmed, and the less they say that could be controversial the less ammunition they provide to senators who might vote against their confirmation. Judge Gorsuch and some other nominees have avoided answering questions about even non-controversial cases, but we have strong reason to suspect that their doing so is strategic: avoiding saying whether any prior SCOTUS case was rightly decided as an original matter excuses the nominee from having to justify why he or she is speaking about some rather than other cases. (Nominees occasionally slip up and do discuss a few specific cases, as Judge Gorsuch did, but to my mind, these are slips, rather than a deliberate strategy.)


Joe said...

The discussion is interesting and somewhat persuasive.

I would remain inclined to think that asking nominees general thoughts, not detailed specifics regarding upcoming cases [line-drawing not exact] mind you, about various legal questions is acceptable and on some level good policy. Basically, overall, Elena Kagan was right the first time in her article, as compared to her "well now that I'm here ..." change of heart.

We already have means of determining such things up to a point by looking at the person's cases, writings and so forth. If Michael C. Dorf was put on the bench (unless he violated the "too mean to Alito" precedent of Goodwin Liu), I would be have a decent sense of his positions on various issues, noting I'm sure he would act somewhat different as a judge (he would have clerks to deliver his vegan lunches).

Finally, it's appropriate as a matter of actually providing advise and consent.

Shag from Brookline said...

The Senate's advise and consent role was political from the very beginning as protection of the interests of slave states. (Reflect on the Justices in Dred Scott.) Mike correctly observes:

"The real reason that SCOTUS nominees do not comment on controversial cases is that they want to be confirmed, and the less they say that could be controversial the less ammunition they provide to senators who might vote against their confirmation."

The nominee thus acts in a political manner as he/she self advocates a lifetime appointment. (Recall judge Bork's missteps.)

There has from the beginning, through the Reconstruction and subsequent Amendments, a continuation of political aspects with respect to judicial appointments, aptly demonstrated by President Obama's nomination of judge Garland in February of 2016 and the Senate's failure to take action. It's political with Trump's nomination of judge Gorsuch. And I expect the Senate's advise and consent role will be political.

Query: Did anyone in the Senate Committee ask judge Gorsuch if he believed that the Constitution provides for judicial supremacy over the horizontal elected federal branches? Is that a political question?

T Jones said...

I'd like to see you elaborate on your separation of powers suggestion. Since the Constitution gives the Senate confirmation power, it's not obvious that investigating a nominee's qualifications (in the broadest sense including suitability) implicates the "separation of powers" at all.

T Jones said...

I'd like to see you elaborate on your separation of powers suggestion. Since the Constitution gives the Senate confirmation power, it's not obvious that investigating a nominee's qualifications (in the broadest sense including suitability) implicates the "separation of powers" at all.

Joe said...

"The Senate's advise and consent role was political from the very beginning as protection of the interests of slave states."

And, various other issues. Once you give political actors the power to appoint, advise (whatever that means) and confirm, it's going to be political in some fashion.

This doesn't mean there are no lines to draw. It's just that "political" is a phony line & Gorsuch's repeated attempts to say "I'm a judge!" and avoid answering various questions doesn't hold up. Have a breakfast bar [inside joke].

Greg said...

This is an interesting argument. I think it's stronger if one assumes that the Supreme Court is really a court, and asking these kinds of leading questions about specific cases is trying to make the court into another legislative body. In this imaginary world, Justices are really chosen for nothing more than their ability to correctly call balls and strikes, and Congress is trying to unfairly influence the umpire.

The problem is that the Supreme Court doesn't act like an ordinary court, and appointments most definitely are made because of the way that the future Justice is expected to rule on certain issues, even if they aren't asked or don't answer directly. In this real world, it seems hard to justify this silly song-and-dance where the Justices refuse to answer questions that might show how they would decide certain cases, since how they would decide those cases is why they were chosen in the first place.

Joseph said...

Much of this is persuasive and yet we must consider the other side of this kabuki theater. One side does their best to find any reason, even if they must manufacture it, to oppose the nomination while the other side seeks to shield the nominee. The truck driver case is a great example of a manufactured reason. If Senators were to give honest and fair consideration to nominees, this would be a different ball game. I noticed Gorsuch discussed specific cases but they didn't strike me as slips.

I thought there were major missed chances for follow up questions because Senators largely stuck to their scripts. Also: Gorsuch studiously avoided arguing legal doctrine with Senators even when they got it very wrong (eg Franken on the absurdity doctrine, Hirono on religious sincerity). I thought that was revealing as he sought to get to the essence of the matter, explaining his view in affirmative terms. I think that way of thinking was on display in the truck driver case and the class clown case (dissenting from majority holding of qualified immunity where student arrested for disrupting class).

Shag from Brookline said...

An appellate judge, and especial a Justice, are far removed the role of an umpire calling balls and strikes which is done in real time with limited appeal rights. The law and order process takes us through policing, prosecuting, trial judges, various levels of appeal, with briefs, etc, such that by the time an appeal gets before a Justice, quite a bit of time and people have been involved. What constitutes the strike zone is spelled out and differs with the size of a batter, and it is said, also differs from humpire to umpire. Umpires make mostly instant decisions, with limited appeal right as noted. Even instant reply technology may not overturn a mistaken ball or strike call. The role of the justice is more complicated and can involve reading through scores of briefs. And frequently not all of the justices can come to an agreement. Perhaps instead of a baseball metaphor politics as a blood sport may be more apt.