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.)